Ep 5 | How Leftists Infused Activism into the Supreme Court | The Beck Story

At 1.05 a.m.

on June 8th, 2022, a taxi stopped off in a quiet street in Maryland's suburb of Washington, D.C.

A 26-year-old man dressed in black stepped out of the taxi carrying a backpack and a suitcase.

The man's luggage contained a tactical knife, a Glock 17 pistol with ammunition, pepper spray, zip ties, a hammer, a screwdriver, nail punch, a crowbar, a pistol light, and duct tape.

His destination was a house just ahead of him on the dark street.

The mission that propelled the man on a cross-country journey from his home in Simi Valley, California began five weeks earlier when Politico published a leaked draft of a U.S.

Supreme Court opinion written by Justice Samuel Alito that would strike down the landmark Roe v.

Wade decision.

Politico would only say that it, quote, received a copy of the draft opinion from a person familiar with the court's proceedings, end quote.

Here's one of the article's co-writers, political reporter Josh Gerstein.

I'm not aware of any prior case where you've actually had a Supreme Court draft opinion publicly released and exposed by a news outlet in advance of the final decision in that case.

It's a very secretive institution.

Most of the time, you don't hear a lot beyond the official arguments and the official opinions that come out from the court.

For weeks after this draft opinion was leaked, protesters descended on the homes of conservative Supreme Court justices, like these marching through Justice Amy Coney Barrett's neighborhood.

The California man with his luggage full of weapons and tools tools took the leaked Supreme Court draft opinion as proof that a woman's federal right to abortion was about to end.

And he was furious about it.

His destination that night was the home of Justice Brett Kavanaugh.

Shortly after he exited the taxi, two U.S.

marshals stationed outside of Kavanaugh's house spotted the man.

Moments later, the man spotted the marshals, too.

He pulled out a cell phone, called 911, and told the operator of his plan to kill a Supreme Court justice and then himself.

Police quickly converged on the scene and arrested him.

He was charged with attempted murder, and according to a federal affidavit, he had an even larger ambition to alter the makeup of the Supreme Court.

He told internet users his goal was to reverse the then-leaked draft decision of the sense-overturned Roe v.

Wade decision.

Authorities say Roski wrote, killing one jurist could change the decisions of the court for decades to come.

I'm shooting for three.

Adding all of the major decisions for the past 10 years have been along party lines.

So if there are more liberal than conservative judges, they will have the power.

So who leaked the draft of the Dobbs opinion that led to this potential assassination attempt on a Supreme Court justice?

In an interview with the Wall Street Journal several months after the final Dobbs decision, Justice Samuel Alito said, quote, I personally have a pretty good idea who was responsible for the leak, but that's different from the level of proof that is needed to name someone.

On the idea that a conservative justice could have leaked his draft opinion, Alito said, quote, that's infuriating to me.

Look, this made us targets of assassination.

Why would I do that to myself?

Why would the five of us have done that to ourselves?

It's quite implausible, end quote.

How did we arrive at such a desperate, desperate place that this unprecedented leak could even happen?

How did the Supreme Court become such a frenetic focal point of our ideological battles?

Well, it didn't happen overnight.

It was methodical and decades-long work of progressive experts.

Ever wonder why things are the way they are in America?

Welcome to The Beck Story, my podcast about how our past informs our present.

How did we get here?

This first season is all about a cult of expertise developed in America, how it permeated our government, how this allegiance to so-called expertise has far-reaching implications for our nation.

Right now, a remarkably consistent through line extends from the original progressive movement right through the actions of the left-wing elites today.

History can turn on a dime.

In America's case, that's what happened on September 6, 1901, when President William McKinley stepped in front of a receiving line at the Pan American Exposition in Buffalo, New York.

An anarchist named Leon Salgaz waited his turn in the long line.

When he stepped forward to shake hands with President McKinley, he suddenly pulled a.32-caliber revolver from his jacket pocket and fired twice at point-blank range.

The first bullet ricocheted off of one of McKinley's coat buttons, but the second bullet entered his abdomen and lodged in his back.

McKinley survived for eight days before infection and gangrene ultimately took his life.

Vice President Theodore Roosevelt was on a camping trip in the Adirondack Mountains when he was summoned to a friend's house in Buffalo.

to take the oath of office as the nation's new president.

America had its first progressive president, and history turned on a dime.

The sudden presidency of Theodore Roosevelt was a pivotal moment in multiple ways.

One of them was his nomination of Oliver Wendell Holmes Jr.

to the Supreme Court in 1902.

Holmes Jr.

was a Boston native and a Union Civil War veteran.

He was wounded three times in three separate battles, including Antietam and Chancellorsville.

He had been on the Massachusetts Supreme Court for 20 years, where he strived to make a name for himself in the legal world the way his father had been a national celebrity as a doctor and a published poet.

The very famous Holmes Sr.

cast a long shadow from which Holmes Jr.

wanted to escape.

His nomination to the U.S.

Supreme Court gave Holmes Jr.

a new lease on his lifelong ambition to equal the fame of his beloved father.

Despite that ambition, the initial phase of Holmes' career as a U.S.

Supreme Court justice was fairly run-of-the-mill.

He wasn't really even a standout on the bench and had even made a plan to resign from the court by the end of 1912, his 10th year as a Supreme Court justice.

But a group of young Washington, D.C.

professionals, all of them progressive, became devoted fans of the 71-year-old Holmes and inspired him to table his plan to ride quietly into the sunset.

The most devoted of these fans was the energizer bunny of progressivism, a young lawyer named Felix Frankfurter.

As a Harvard law school alum himself, Holmes was accustomed to being introduced to eager young Harvard graduates, but none of them had the lasting influence on Holmes' life that Felix Frankfurter had.

Frankfurter ultimately caused progressive elites to believe in Holmes, and that in turn fueled Holmes' belief in his own legend.

Felix Frankfurter.

He was born in Austria, the third of six children.

His family immigrated to the U.S.

when he was 12.

He arrived not speaking a word of English, but by the time he graduated high school, he was third in his class and on his way to the debate team.

One of Frankfurter's Harvard law professors first introduced him to Oliver Wendell Holmes Jr.

after Frankfurter had moved to Washington, D.C.

to work as a lawyer at the Bureau of Insular Affairs.

Frankfurter usually made a strong impression, for better or worse, on every person he met.

And Holmes was no exception.

But few people wowed Frankfurter as much as Holmes did from the get-go.

Frankfurter received a coveted lunch invitation to the Washington, D.C.

home of Holmes and his wife.

Afterward, Frankfurter wrote to a friend about his meeting with Holmes, saying, I came away with the keen relief of having been on Olympus and finding that once God did not have clay feet.

Frankfurter began hyping Holmes as an unsung genius of the Supreme Court, the intellectual giant who would be the guiding light for the burgeoning progressive movement.

Frankfurter's hype campaign is no overstatement because it is hard to imagine someone better connected than he was.

One friend said Frankfurter didn't collect books or pictures.

Instead, quote, He collects people, end quote.

Well, thanks to this growing network, Frankfurter landed in a sort of epicenter of progressivism.

It was a three-story red brick row house in Georgetown.

He lived there with four close friends, all of them progressives, and all worked in government jobs.

In what would be a prophetic indicator of the expert progressive mindset, they soon started calling their residence the House of Truth.

Historian Brad Snyder, who wrote a fascinating history of the House of Truth and the men who lived there, described it as, quote, the center of a new liberal network, end quote.

The House of Truth became an elite but informal sort of club where well-placed federal workers mingled shared ideas and gossip and ultimately worked toward the same progressive ideals.

Frankfurter said, almost everybody who was interesting in Washington sooner or later passed through that house.

A dinner invitation to the House of Truth became such a hot social ticket in D.C.

that local newspapers covered it.

One of the most frequent guests at the house was Oliver Wendell Holmes Jr., and his star rose quickly among the progressive elite because, as historian Brad Snyder described it, quote, of all of the great talkers in Washington, none compared to Holmes.

What endeared Holmes to Frankfurter and other progressives was his judicial decisions in support of the labor movement and other progressive legislation.

He often voted in a minority on the Supreme Court cases and wrote sharp, short, dissenting opinions that showed a real rebel streak that progressives loved.

As Holmes once described his Supreme Court opinions to his friend, quote, The vulgar hardly will believe an opinion important unless it is padded like a militia brigadier general.

You know my view on that theme.

The little snakes are the poisonous ones.

Holmes' most famous dissent came in 1905 in the case of Lochner versus New York.

The question was whether the state of New York had the right to restrict the daily and weekly working hours of bakers.

The court ruled that the New York law was unconstitutional because it violated the 14th Amendment's due process clause, which holds that a state may not deprive any person of life, liberty, or property without the due process of law.

In other words, the majority argued that a baker and a bake shop owner should be able to make their own work contract arrangement without state interference.

In his famous dissent, Holmes made a rather bizarre claim, essentially that the Constitution is not primarily about protecting individual rights.

He argued instead for the right of the majority to embody their opinions in law.

The word liberty in the 14th Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion.

In other words, Holmes was saying that the Supreme Court should take a hands-off approach to these types of issues and let the majorities in legislatures rule freely.

Law professor David E.

Bernstein wrote that Holmes and his progressive supporters, quote, had little use for individual rights and thought the police power virtually unlimited, end quote.

Holmes' version of true liberty would allow restriction of liberty if that's how the majority ruled.

He even wrote to a friend, quote, If my fellow citizens want to go to hell, I will help them.

It's my job.

This new radical and wildly inaccurate view of the basic purpose of the United States Constitution was a revelation to Frankfurter and to his fellow progressives.

Under this constitutional philosophy, imagine what true experts could accomplish.

It's the same philosophy that produced the left-wing concept of the living Constitution, one whose interpretation changes based on the evolving whims of the American people.

Here is Supreme Court Justice Sonia Sotomayor speaking to a group in 2020.

The Constitution is not a dead document, but a living one, that was intended to last as long as the country could last and that our founders hoped it would be for basically forever.

And that it was intended to grow with the society and to be interpreted within the norms that the society develops.

Author Ayn Rand once said that Justice Holmes, quote, has had the worst philosophical influence on American law, end quote.

She may have been right, but progressives gulped down Holmes' philosophy.

And the Lochner v.

New York case formed the template for how Holmes would rule or dissent in cases for the rest of his Supreme Court career.

In the infamous free speech case Schneck v.

U.S.

in 1919, Holmes wrote the unanimous opinion that Charles Schneck's leaflets protesting the U.S.

military draft during World War I

was not constitutionally protected free speech because the leaflets created a clear and present danger.

Holmes also compared Schneck's anti-draft messaging to falsely shouting fire in a crowded theater.

Holmes' worst ever decision, however, may have been the 1927 case Buck v.

Bell.

For the full tragic story of that case, make sure you listen to episode two of this season.

Again, writing for the majority opinion, Holmes upheld the state of Virginia sterilizing a young woman against her will.

Incredibly, Holmes and his progressive supporters failed to see the danger of majority rule for basic personal liberties.

After the Buck v.

Bell case, Holmes said the decision gave him pleasure and wrote in his letter to a close friend, I delivered an opinion upholding the constitutionality of a state law for sterilizing imbeciles the other day and felt that I was getting near the first principle of real reform.

As progressivism began to take over major institutions of American life, Holmes and his anti-liberty decisions were revered.

And Frankfurter was most responsible for crafting that image of Holmes as sort of a progressive Yoda.

The new New Republic magazine was born in the House of Truth, with Frankfurter as one of its co-founders.

It became the primary mouthpiece of the House of Truth's network.

Holmes claimed not to be interested in newspapers or politics, but he admitted the New Republic became his main source of news and stayed that way for the rest of his life.

Frankfurter especially used the magazine for decades as one of his megaphones to support the progressive causes and individuals he was passionate about.

Frankfurter called Holmes, truly the impersonal voice of the Constitution.

The cascade of over-the-top praise for Holmes was never-ending.

Here's a sample of what other progressives said about him, quote, He's the summit of hundreds of years of civilization, the inspiration of ages yet to come.

Or, for the American lawyer, he's the Beau ideal, and the lawyer quotes his aphorisms as the literate layman quotes Hamlet.

He is a judge who deals with things, not words.

Man who realizes that a document which is to rule a great people must in its very nature allow for a wide and growing field for experimentation.

It's hard to imagine now, but during the 1912 presidential election, the question of which party would become the home of progressivism hung in the balance.

The incumbent William Howard Taff retained the Republican nomination.

Woodrow Wilson surged to the Democratic nomination.

And Theodore Roosevelt jumped in the race, trying and failing to beat Taft for the Republican nomination, then running as a third-party candidate under the new Progressive Party banner.

Some progressives, like Wisconsin Senator Robert Lafoliet, wanted the Republican Party to become progressive.

Others, like Louis Brandeis, whom you'll remember from previous episodes this season, believed Woodrow Wilson's progressivism made the Democratic Party a natural home for the movement.

But most of the progressives orbiting the House of Truth, especially Felix Frankfurter, threw their weight behind Theodore Roosevelt.

The strange election of 1912 mixed Republican, Democrat, and progressive votes, with Woodrow Wilson ultimately benefiting most from Roosevelt's third-party candidacy.

The election signaled the end of Roosevelt's sunburst of a a political career.

It also sent his die-hard progressive supporters into Woodrow Wilson's camp.

By the next presidential election, Wilson sealed the loyalty of the progressives to the Democratic Party when he nominated one of their own to the U.S.

Supreme Court, Louis D.

Brandeis.

Wouldn't it be nice if you lived in a country where you didn't have to constantly worry that your government was lying to you?

A country where you could take it for granted that they weren't making decisions based on on what they think is in your best interest and not what you think is.

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April 15th, 1920.

It was a normal payday at the Slater and Morrill Shoe Company in South Braintree, Massachusetts.

It was mid-afternoon as the company's paymaster and security guard moved the payroll boxes full of cash from the company office to the main factory building.

Suddenly, two men rushed into their pack, pulled out the pistols, and shot the paymaster and the security guard multiple times.

As the victims crumpled to the ground, the assailants scooped up the two payroll boxes and sped away in a Buick.

They escaped with over $15,000, worth about $234,000 today.

A few days later, the abandoned getaway car was tracked down in a local garage.

Police traced the car to a man named Mike Boda, who had already fled to Italy.

Police soon located Boda's colleagues, two Italian immigrants and an anarchist named Nicola Sacio and Bartolomeo Vensetti.

They each had loaded guns on them when they were arrested.

Sacco was carrying a.32-caliber handgun with bullets made by the same manufacturer as those recovered at the crime scene.

But a year later, the murder trial of Socco and Vincetti captivated the nation.

Was it the open-and-shut case of downtrodden immigrants committing a horrific robbery, as the prosecution insisted?

Or were the two men being railroaded thanks to the anti-communist and anti-immigrant sentiment that was permeating the nation at the time.

The case of Sacco and Vincetti was a major turning point for left-wing activism.

Progressives made it a worldwide cause, raising millions of dollars for their defense.

There were mass public demonstrations, walkouts organized by labor unions, even bombings at the U.S.

embassies in Paris and Buenos Aires.

The left transformed Sacco and Vincetti into a symbol of prejudice in the American justice system.

Few people were more obsessed with the Socco-Vincetti cause than Felix Frankfurter and Supreme Court Justice Louis Brandeis.

Frankfurter first met Brandeis in 1905 when Frankfurter was a law student at Harvard and Brandeis was there giving a speech titled, The Opportunity in Law.

Their friendship blossomed years later when Brandeis was a frequent guest at the House of Truth.

In 1914, Brandeis counseled Frank Furter to accept a job as a law school professor at Harvard, which he did.

Two years later, when Woodrow Wilson nominated Brandeis to the Supreme Court, Frank Furter was a one-man PR machine on behalf of Brandeis, publishing articles in the New Republic and other outlets in favor of his confirmation.

That support cemented their friendship, eventually leading Brandeis to describe Frankfurter as half-brother, half-son.

On the Supreme Court, Brandeis and Oliver Wendell Holmes Jr.

were close friends and allies.

They had known each other since the late 1800s when Brandeis had a private law practice in Boston and Holmes was on the Massachusetts Supreme Court.

From his position at the Harvard Law School, Frank Furter handpicked every new law clerk for both Brandeis and Holmes from among his own students.

Brandeis and Holmes accepted Frank Furter's choices sight unseen.

After completing their Supreme Court clerkships, these clerks later became progressive operatives throughout the federal bureaucracy, remaining loyal to the Frank Furter-Brandeis agenda.

When Brandeis and Holmes had been together on the Supreme Court for a few years, Chief Justice William Howard Taft described Holmes as, quote, so completely under the control of brother Brandeis that it gives to Brandeis two votes instead of one.

Whenever they voted in the minority, Brandeis encouraged Holmes to write the sharp dissents that endeared him to the progressives.

Then, Frankfurter would promote them in published reviews, once saying, quote, They are dissents that shape history and record prophecy.

Where others are guided through experience of life, he's led by the divination of the philosopher and the imagination of the poet.

He is indeed philosopher become king.

Frankfurter was the ultimate spin doctor, and the efforts paid off when both Brandeis and Holmes landed their own covers of Time magazine.

For a full-time Harvard law professor, Frankfurter spent a prodigious amount of time corresponding with Brandeis and Holmes and promoting and lobbying for progressive causes.

By the 1920s, progressives had taken to calling themselves liberals, and sometimes Frankfurter's brand of liberalism made even some of his liberal friends squirm.

Frankfurter had no qualms about associating with people in movements radically opposed to the U.S.

constitutional system.

After Frankfurter represented a group of communist immigrants that the Justice Department was trying to deport, the FBI ordered an investigation of him.

J.

Edgar Hoover called Frankfurter the most dangerous man in the United States, which is kind of ironic coming from J.

Edgar Hoover.

But clearly, Frankfurter wore his liberalism on his sleeve and was eager to run in the radical circles when it suited his agenda.

Holmes, meanwhile, never backed down from his ideal that majority rule was supreme, even if it meant communism.

He said,

If in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.

In 1921, Sacco and Vincetti were tried, convicted, and sentenced to die for the murders outside of the shoe company in South Braintree, Massachusetts.

Five years later, they were still on death row as every possible legal maneuver was attempted by their progressive sponsors.

The rudimentary forensic analysis of the time seemed to indicate that the gun owned by Nicola Sacco was one of the murder weapons.

The prosecution argued that the pistol which Vincetti had when he was arrested was the one he had stole off the dead body of the security guard.

The suspects also made false statements to the police when they were arrested.

But Sacco and Vicente's progressive defenders insisted that they were victims of the anti-radical, anti-immigrant hysteria.

Felix Frankfurter became interested in the case through a widow named Elizabeth Evans.

She was a lifelong friend of Louis Brandeis and his wife.

She sometimes even lived with them.

She credited Brandeis with nudging her into social activism after her husband died.

Evans attended to the first trial of Sacco and Vicente and was riveted.

She befriended the murderer suspects and regularly visited them in jail.

Then she, along with Frankfurter's wife, pled to get him involved.

Frankfurter soon went all in on the case.

He helped write articles in the New Republic, enlisted his journalist friend Walter Lippmann to join the effort in the New York World, and took out full-page ads in the New York Times.

Frankfurter wrote a 23-page article for The Atlantic laying out what he considered to be the legal problems with the trial, discrepancies in witness testimony and evidence, a prejudiced judge, and the overall Red Scare environment.

Just a month later, he turned the article into a book and donated all of the proceeds to the Sacco and Vicente Defense Fund.

According to historian Brad Snyder, Frankfurter, quote, turned the Sacco and Vicente case into nothing less than a litmus test for American liberalism, end quote.

Frankfurter's constant public pressure was a major factor in convincing Massachusetts Governor Alvin T.

Fuller to appoint a three-man committee to review all of the evidence in the case one more time.

The Lowell Committee, as it became known, included a retired judge, the president of MIT, and was chaired by Harvard University President A.

Lawrence Lowell.

After reviewing the case and conducting more interviews with witnesses, the Lowell Committee determined that the original verdict was correct and that Sacco and Vicente were guilty.

Who had urged Frank Furter to fight this case so hard in the press?

Louis Brandeis, who by then had been a U.S.

Supreme Court justice for a decade.

Brandeis even paid Frank Furter $500 for the effort, the equivalent of around $9,000 today.

With the clock ticking rapidly towards Sacco and Vicente's execution date, their lawyers showed up at the summer home of Justice Holmes right outside of Boston.

They pleaded with him to grant a stay of execution so that the case could be appealed to the U.S.

Supreme Court when it reconvened in the fall.

The lawyers took almost three hours to make their case to the 86-year-old justice, but in the end, he declined to grant the stay, arguing that he had no legal authority to interfere with the proceedings of the Massachusetts State Court.

As a result of the Holmes decision, the U.S.

Supreme Court received a bomb threat, and plainclothes police officers were stationed at all the justices' homes.

Some things never change with the radical left.

Essentially, out of options, Frankfurter instructed the defense team to try a last-ditch effort by visiting Brandeis at his summer home in Cape Cod.

Brandeis met with lawyers on his front porch.

Unlike, however, their session at Holmes House, this meeting only lasted a few minutes.

Brandeis told them he couldn't take any action at all.

They protested, but he cut them off, insisting he would disqualify himself from any appeal to the U.S.

Supreme Court because of his personal connections with the case.

In addition, to his friendship with Elizabeth Evans, the woman who had convinced Frankfurter to get involved with the case, Sacco's wife and two children had lived in one of Brandeis's houses during the original trial, and his wife donated money to the Sacco Vicetti Defense Fund.

There was also his financial arrangement with Frankfurter to argue for the defendants in the press.

As much as Brandeis likely wanted to grant a stay of execution, it would have exposed his extreme prejudice in the case.

Not really a good look for a justice of the U.S.

Supreme Court.

In the end, he could not risk outing himself.

At midnight, August 23rd, 1927, Sacco and Vicente went to the electric chair.

Frankfurter's wife, Marion, was reportedly so devastated that when she heard the news, she collapsed and fell into a months-long depression.

Holmes had never been as convinced as Frankfurter about Socco and Vicente's innocence.

He wrote to a friend, I doubt if anyone would say that there was no evidence warranting a conviction.

The left has never gotten over the Socco and Vicenti case.

New investigations and forensic analysis were conducted in 1961 and again in 1983.

Both times revealed Socco's handgun as having fired the bullets.

In 2005, a letter was discovered written from some socialist author, Upton Sinclair, to his attorney in 1927.

Sinclair recounted that he was in Boston conducting research for a book when he met with Sacco and Vicente's trial lawyer, who told them that the men were guilty.

The lawyer even explained to Sinclair how he had, quote, framed a set of alibis for them, end quote.

Brandeis and Holmes both had horrendous Supreme Court records when it came to racial issues.

They voted with a majority in many decisions that upheld racial segregation and discrimination, including reaffirming the racist separate but equal doctrine.

But by the time of the Sako Vicente saga, Holmes seemed to be evolving beyond his left-wing peers when it came to race.

He wrote to a friend, I cannot but ask myself, why this so much greater interest in red than black?

By red, he meant communism and radical leftist movements in general.

Holmes continued, A thousand-fold worse cases of Negroes come up from time to time, but the world does not worry over them.

It is not a mere simple abstract love of justice that has moved people so much.

It was an insightful point that the American left still refuses to reckon with.

It's why over 930,000 babies murdered in abortion clinics went unnoticed in 2020.

But the unjust death of George Floyd sparked the most costly riot in U.S.

history.

And it's why U.S.

college campuses hosted appalling anti-Semitic protests by pro-Palestinian supporters glossing over the 1,200 Jews who were murdered by Hamas terrorists on October 7th, 2023.

Indeed, this is not some simple abstract love of justice that has moved people so much.

Woodrow Wilson, especially with his wild executive overreach during World War War I, showed and inspired progressives with what could be done by an expert in the White House.

Theodore Roosevelt had been the trailblazer in that regard, and Wilson took that power to the next level.

But during the 1920s, the progressives only had their two heroes on the Supreme Court to cling to.

And that reverence for judicial activism, or as Brandeis had put it, the opportunity in law, took root on the left and has only grown stronger since.

Because of this growing importance heaped on the Supreme Court by the left, Brandeis and Frankfurter propped up Holmes on the court for as long as possible.

In 1928, Holmes turned 87 and passed Roger B.

Taney to become the oldest ever Supreme Court justice.

When Holmes' doctor advised that he retire from the court, Brandeis talked Holmes out of it.

To express one's feelings as the end draws near is too intimate a task.

But I may mention one thought that comes to me as a listener in.

The riders in a race do not stop short when they reach the goal.

That was Holmes speaking to a nationwide radio audience on CBS at the end of a special program in honor of his 90th birthday.

Nine months later, he finally succumbed to the rigors of Supreme Court life and retired.

He still holds the record as the oldest person to serve on the court.

Holmes died in 1935, just two days shy of his 94th birthday.

Among the glowing tributes for Holmes was this one in Harper's magazine that said he, quote, ceaselessly remembered that the Constitution is not a gate, but a road.

The left was just getting started with his expert opinion of our Constitution as a road.

After the execution of Sacco and Vicente, Louis Brandeis tried to console Frankfurter in a letter, saying, The end of Sacco Vanzetti is only the beginning.

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The 1920s was not a great decade for progressive power.

The fact that Republican presidents were elected in a row, Warren Harding, Calvin Coolidge, and Herbert Hoover, can be read in part as a backlash against the authoritarian excesses of Woodrow Wilson that I've covered in episode three of this season.

But after Wilson left office, progressives, or liberals, as many of them had taken to calling themselves by then, did not control the executive branch for over a decade.

That doesn't mean they were dormant by any stretch.

It means that they were desperate to find other ways to wield influence, especially on the Supreme Court.

As historian Brad Snyder put it, they quote, used the courts to advance their political and legal agenda.

The legal system offered another path to success.

Oliver Wendell Holmes Jr.

had shown progressives how to pursue their agenda on the Supreme Court.

Louis Brandeis, who was way more of a progressive political activist than Holmes, gladly took up that mantle.

Brandeis was the architect of Woodrow Wilson's agenda when Wilson was first elected.

As Wilson's chief economic advisor, Brandeis designed the Federal Reserve System and the new Federal Trade Commission.

He became indispensable to Wilson, who, after nominating Brandeis to the Supreme Court, said, quote, I need Brandeis everywhere, but I must leave him somewhere.

Brandeis was far too much of a political activist to leave that part of his work behind when he became a Supreme Court justice, so he quickly enlisted his apprentice and close friend Felix Frankfurter to carry out the activism for him.

Thanks to his new law practice and savvy investments, Brandeis was a millionaire.

Shortly after joining the Supreme Court, Brandeis opened a special account at a bank in Boston in which he deposited annual payments of $1,000 to Frankfurter, which would, in this day, be equivalent to over $24,000.

In 1926, after a decade of this financial arrangement, Brandeis tripled Frankfurter's annual pay.

According to a historian Bruce Allen Murphy, who wrote the definitive account of this partnership in a 1982 book called The Brandeis-Frankfurter Connection, there is no indication that any of Brandeis' fellow justices on the Supreme Court ever knew about the arrangement.

During the 1920s, Brandeis and Frankfurter's influence campaign had limitations since they were no longer enjoying direct access to the White White House like they had under Wilson.

Instead, they made do with their progressive allies in Congress, including Wisconsin Senator Robert La Folliet.

They used those years out of power to spread their ideas in the press and lay patient groundwork for the moment when the progressive would return to the White House.

Here's how the Brandeis-Frankfurter partnership worked.

There was constant communication between them, sometimes even daily letters.

Historian Bruce Allen Murphy describes the letters from Brandeis as resembling, quote, shopping lists with numbered items proposing legislation, political action strategies, and even the latest insider information on Supreme Court cases.

Then Frankfurter took action on Brandeis's requests.

He lobbied members of Congress directly, sometimes even drafted legislation for them to try to correct decisions that Brandeis thought the Supreme Court had gotten wrong.

Frankfurter's close working relationship with the New Republic magazine, his friendship with the editors of the New York World and Boston Herald, plus numerous other contacts in mainstream press and law review publications, enabled him to publish articles widely on any topic Brandeis ordered.

Often, Frankfurter would take comments on current issues that he received in letters from Brandeis and redraft them into unsigned articles that were published in the New Republic.

If Frankfurter didn't write the articles himself, he farmed them out to other journalists in his network, or, as was often the case, he used his carefully selected core of Harvard law school students to research and write scores of articles for he and Brandeis.

When these law student-produced articles got published, they often thanked their professor Frankfurter for his inspiration and support, having no clue that the topic actually originated with a sitting Supreme Court justice.

These students, handpicked by Frankfurter, would eventually be placed in influential positions in President Roosevelt's New Deal agencies, where they would enforce many Brandeis policy ideas that they'd written about in the 1920s.

Because of Brandeis' network of contacts in the Wilson administration and later in FDRs, one biographer described Brandeis' influence as being, quote, like many invisible wires into many government bureaus, end

Brandeis and Frankfurter were constantly consulted when there were vacancies in government agencies.

Brandeis would suggest candidates to Frankfurter, who would investigate them and either approve or deny before giving their recommendations to the Wilson or FDR White House.

Woodrow Wilson's weirdly close personal advisor, Colonel Edward House, was even annoyed and perhaps a bit jealous of the influence Brandeis had with Wilson.

House remarked, quote, I cannot quite understand why a justice of the Supreme Court should bother about other people's business as Brandeis does.

The reason?

Because Brandeis was the key innovator in this new expert era of left-wing politics.

Louis Brandeis began to see the light at the end of the dark tunnel for progressives when Franklin D.

Roosevelt was elected governor of New York in 1928.

Before FDR even won the election, Brandeis wrote Frankfurter about trying to establish a relationship with FDR.

Frankfurter and FDR were already acquaintances from their time working at the War Department during World War I.

Frankfurter and the networking Phenom went to work writing for FDR with his usual mix of intelligence and flattery.

He and FDR became fast friends and Frankfurter became an informal policy advisor during FDR's four years as the New York governor.

While cultivating a personal relationship with FDR, Frankfurter also continually passed him personal messages from Brandeis, like this one in 1930, in which Brandeis told Frankfurter to advise FDR that he should be prepared to pounce upon Herbert Hoover at the end of the 60-day period when Hoover said all unemployment trouble would be over.

Think about the uproar and calls for impeachment from the left that would happen if it was revealed, for example, that Justice Clarence Thomas was advising Donald Trump or Governor Ron DeSantis on how to capitalize on the latest gaffe by President Biden.

When FDR was elected president in 1932, his friendship with Frankfurter blossomed and the Brandeis-Frankfurter influence on the White House grew.

Brandeis always went out of his way to make it appear that he was detached from politics and wasn't compromising his impartial position as Supreme Court justice.

In addition to Frankfurter, he used several other intermediaries to get messages messages directly into Roosevelt's hands.

When he wanted to meet one-on-one with FDR, Brandeis would send a message to the White House through an intermediary saying that he was at home and available to meet.

That way, the subsequent meeting, even though initiated by Brandeis, would technically be requested by Roosevelt.

One of the many policy areas where Brandeis was most passionate about was massive government spending on public work projects.

He and Frankfurter lobbied FDR and his cabinet members relentlessly about establishing public work programs.

Brandeis and Frankfurter even went so far as trying to get one of their allies appointed to an influential position at the Treasury Department to help overcome resistance to the massive government spending they proposed.

That effort paid off when their pick, a Harvard economist, was named financial advisor and executive assistant to the Treasury Secretary, William Wooden.

Before their man was even offered the job, Frankfurter had sent him a telegram saying, If a call comes, be sure to accept it.

We have great need of you.

To pay for all these public work programs, Brandeis and Frankfurter were also passionate about instituting a progressive tax system.

In 1934, Brandeis instructed Frankfurter to communicate to FDR that he should sell his massive tax the rich plan to the public, not as redistribution of wealth, but distributing power, consumer power, economic power, political power, and the power of human creative development.

The Brandeis-Frankfurter progressive tax campaign was also successful, resulting in the highest top income tax rate in U.S.

history.

The high point of this rate was in 1944, when top taxpayers paid an income tax of 94%.

The paid partnership between Brandeis and Frankfurter placed so many Harvard Law School graduates in positions throughout the Roosevelt administration that they became known in Washington as Felix Happy Hot Dogs.

George Peake, the head of the Agricultural Adjustment Administration, said, quote, A plague of young lawyers settled on Washington.

They all claimed to be friends of somebody or other and mostly of Felix Frankfurter.

They floated airily into offices, took desks, asked for papers, and found no end of things to be busy about.

I never found out why they came, what they did, or why they left.

These protégés served as eyes and ears for Brandeis and Frankfurter throughout the government.

Joseph Kennedy Sr.

once complained to FDR that Frankfurter was running the administration.

Roosevelt got defensive and said, Why, I don't see Frankfurter twice a year.

Kennedy retorted, you see him 20 times a day, but you don't know it because he works through all these other groups of people without your knowing it.

End quote.

General Hugh S.

Johnson, a member of FDR's advisor group known as the Brain Trust, called Frankfurter, quote, the single most influential individual in the United States.

And yet, No one knew that Frankfurter's chief influence was Supreme Court Justice Louis Brandeis, and that Brandeis was paying him thousands of dollars a year to act on that influence.

The most blatant use of these Harvard law school protégés was Brandeis and Frankfurter's collaboration with Benjamin Cohen and Thomas Cochran, who worked as lawyers in FDR's New Deal agencies.

Cohen and Cochran met with Brandeis in his home, sometimes twice a month, to discuss issues and potential legislation.

Brandeis would then send specific proposals to Frankfurter, who would have his Harvard students conduct any necessary research.

Then, Frankfurter would forward Brandeis' proposals and the supporting research directly to FDR.

Then, FDR would instruct Cohen and Cochran to write the necessary bills.

It was a remarkable sort of legislation laundering operation that started with the Securities Act of 1933 that allowed Brandeis to make it look like he was maintaining appropriate separation from the executive branch activity.

But in reality, it was a sitting Supreme Court justice helping craft legislation that he might later have to rule on if it came before the court.

By 1935, Frankfurter was invited to live at the White House for a summer to work shoulder to shoulder with FDR on policy, legislation, even writing speeches, all the while incorporating input from Brandeis.

The financial arrangement between Brandeis and Frankfurter only ended once the inevitable happened.

Roosevelt appointing Frankfurter to the U.S.

Supreme Court in 1939.

Two weeks after Frankfurter joined the court, Louis Brandeis retired.

It was the end of an era, but certainly not the end of activism from the bench.

In fact, Frankfurter took it to the next level.

He was so hands-on and so well connected in Washington Washington that he even held meetings with ambassadors and foreign secretaries in his Supreme Court office.

As a Supreme Court justice, Frank Furter also continued writing and advising on speeches for FDR.

Roosevelt's speechwriters often met with Frank Furter at his Georgetown home to collaborate.

Years later, when one of FDR's main speechwriters was working on his memoirs, he sent Frank Furter a section that included details on their collaboration when Frank was on the Supreme Court.

Frankfurter wrote him back, pleading for him to add that Frankfurter, quote, scrupulously observed the restrictions of the Supreme Bench.

Brandeis and Frankfurter both went to great lengths to try to conceal their activity and maintain a public image that was completely ethical and upright for judges.

Sometimes fostering this image meant telling outright lies, like this response from Frank Furter to a request for help in writing a speech for the governor of West Virginia in 1944.

I have an austere view of the position of a judge on this court, and that means I have nothing to say on matters that come within a thousand miles of what may fairly be called politics.

Frank Furter had over 300 letters that Brandeis wrote to him during the 1930s, and he refused to let them be seen even by the Brandeis authorized biographer.

He also burned hundreds of examples of his correspondence with FDR.

According to historian Bruce Allen Murphy, quote: Both Brandeis and Frankfurter seem to have been convinced, first, that public disclosure of their activities would be sure to bring the court into disrepute, and second, that the mission of the court could not be carried out should their own behavior be used to establish new, more lenient standards, allowing more widespread extrajudicial activity by sitting members of the court.

It was now the classic case of experts giving themselves carte blanche to act outside of the boundaries of ethics and norms because, in their own estimation, the necessity of our expertise simply demands it.

In other words, do as I say, not as I do.

The die had been cast for progressives on how to use and influence judicial power.

Roe v.

Wade was almost overturned 30 years before the Supreme Court's 2022 Dobbs v.

Jackson decision.

The reason it wasn't is curious in the light of the Brandeis-Frankfurter collaboration.

In 1987, President Ronald Reagan nominated Robert Bork to be an associate justice on the U.S.

Supreme Court.

Bork was well known in legal circles as a conservative law scholar.

He had taught at Yale Law School, where Bill and Hillary Clinton were among his students.

In 1982, the U.S.

Senate confirmed Bork to the U.S.

Appeals Court in D.C.

His nomination to the Supreme Court should not have been controversial.

But Bork was a strong defender of originalism, the judicial philosophy that judges should interpret the Constitution as written.

By the 1980s, originalism was controversial thanks to decades of the living or flexible Constitution philosophy espoused by many progressive disciples of Oliver Wendell Holmes Jr.

Bork's nomination was quickly politicized.

Here's then-Senator Ted Kennedy railing against the Bork nomination.

Robert Bork's America is a land in which women would be forced into back alley abortions.

Blacks would sit at segregated lunch counters.

Rogue police could break down citizens' doors and midnight raids.

and school children could not be taught about evolution.

Writers and artists would be censured at the whim of government.

Notice how fear-mongering over abortion was the crux of his commentary.

During Bork's Senate confirmation hearing, an activist Harvard Law School professor named Lawrence Tribe testified against him at length.

But as a justice, Judge Bork would cast a vote that no higher court could correct.

Now, it's true that he would have only one vote out of nine, but his might often be the decisive vote and even when it is not, his potential influence on the future development of constitutional law and on the role of the Supreme Court in protecting constitutional rights would be too great to warrant confirmation if

the positions that he has long crusaded for seriously endanger the traditional role of the court as a principal defender of liberty and equality.

Famously, the Senate voted against Bork's confirmation 58 to 42.

He has been called the most qualified nominee to ever been denied confirmation.

His name became a verb.

Borking refers to the kind of vicious politically motivated character assassination that attempts to derail a nominee for office.

President Reagan was forced to nominate one of his alternate choices, the more moderate, Anthony Kennedy.

After the Senate confirmed Kennedy 97-0, Reagan introduced him from the White House and near the end of his remarks seemed to be reminding Kennedy of his proper duty as justice.

And so the role assigned to judges in our system was to interpret the Constitution and lesser laws not to make them.

It was to protect the integrity of the Constitution, not to add to it or subtract from it, certainly not to rewrite it.

For as the framers knew, unless judges are bound by the text of the Constitution, we will in fact no longer have a government of laws, but of men and women who are judges.

And if that happens, the words of the documents that we think govern us will be just masks for the personal and capricious rule of a small elite.

Conservatives at the time had few fears about Anthony Kennedy.

He had served 13 years on the Ninth Circuit Court of Appeals in California and emerged with a conservative reputation.

The White House thought he was a lock for voting against Roe v.

Wade should the case come up.

Sure enough, four years later, the case Planned Parenthood of Southeastern Pennsylvania v.

Casey arrived at the Supreme Court.

Several abortion clinics and doctors were challenging Pennsylvania's abortion law that required informed consent and 24-hour waiting period before a woman could get an abortion.

Under this law, minors had to get the required consent of one parent and a married woman had to notify her husband.

The question before the court was whether a state can require a woman seeking an abortion to get informed consent and wait 24 hours without violating their supposed right to an abortion, according to the Roe v.

Wade precedent.

It offered a clear opportunity for justices who were committed to constitutional integrity to overturn the bogus abortion right that Roe v.

Wade invented.

After hearing the case, but before writing opinions, Supreme Court justices meet to have an unofficial vote.

Then, after the initial opinion is written, the opinion circulates among justices, and they have the opportunity to offer feedback and to even change their vote before the final decision is issued.

In conference, after hearing the Planned Parenthood v.

Casey arguments, Justice Anthony Kennedy voted with the 5-4 majority, which included Justices Antonine Scalia, Clarence Thomas, Byron White, and Chief Justice William Rehnquist.

Rehnquist began writing the majority opinion, which would have denied abortion as a constitutional right through Roe v.

Wade.

But weeks later, Justice Kennedy sent a note to Justice Harry Blackman that said, quote, Dear Harry, I need to see you as soon as you have a few free moments.

I want to tell you about some developments in Planned Parenthood v.

Casey,

and at least part of what I should say should come as welcome news.

Justice Blackmun had written the original 1973 majority decision on Roe v.

Wade.

After meeting with Justice Kennedy, he jotted on a memo pad, quote, Roe sound.

In 1990, just two years after Anthony Kennedy joined the court, he attended a judicial judicial conference in Salzburg, Austria, with the famous Harvard law professor Lawrence Tribe, the professor who had testified so effectively against Robert Bork during the Senate hearing.

According to the Washington Post at the time, Supreme Court sources speculated that Tribe convinced Kennedy at the conference to hire one of Tribe's former Harvard law students as a clerk.

Another of Professor Tribe's Harvard law protégés already worked as a clerk for Justice David Souter.

Souter had been appointed by George H.W.

Bush.

Both of these clerks had just co-authored books with Professor Tribe, one titled Abortion, The Clash of Absolutes, the other titled, On Reading the Constitution.

One academic review of Tribe's abortion book said, quote, Tribe's only proposals are that one side's absolutes, his pro-abortion view, should be adopted and the other side's rejected.

In Planned Parenthood v.

Casey, Justice Souter voted to uphold Roe v.

Wade.

Then Kennedy flipped his vote and joined him.

Souter and Kennedy, along with Sandra Day O'Connor, co-wrote the new majority decision on the case.

Their expansion of the so-called right to abortion moved it from being primarily an issue of privacy to an issue of liberty under the 14th Amendment provision that no state may deprive any persons of life, liberty, or property, making abortion an issue of liberty also just happened to be the view espoused by Professor Tribe.

Justice Anthony Scalia reportedly drove to Kennedy's house to argue with him about this reversal, but Kennedy apparently could not be persuaded to stick with his original stance.

So why did Kennedy flip his vote?

We may never know with certainty, but the Washington Post opined at the time, quote,

the reason Kennedy flipped and formed a 5-4 majority affirming Roe is attributed by some critics to his desire for approbation by journalistic and legal establishments committed to judicial activism, in particular, Larry Tribe, the famous Harvard law professor, is accused by critics of lobbying Kennedy.

End quote.

Now, where would a high-profile Harvard law professor get a roadmap for the judicial activism that could be accomplished when a law expert collaborates with a sitting Supreme Court justice?

Louis Brandeis, Felix Frankfurter.

They were the true trailblazers of left-wing activism in the law.

Sometimes, history shows its prankster side.

The year after the Casey decision upheld and reinforced Roe v.

Wade, Justice Anthony Kennedy got a new law clerk, a Yale Law School graduate named Brett Kavanaugh.

25 years later, Kennedy announced his retirement from the Supreme Court, and Kavanaugh was nominated to replace him.

Kavanaugh, of course, would go on to be borked in grotesque fashion by Senate Democrats at his Supreme Court confirmation hearing.

Almost four years later, the Supreme Court insider who leaked the Dobbs opinion draft also revealed to Politico that Kavanaugh had voted with the majority to overturn Roe v.

Wade.

And that's what led that derange stalker with a bag full of weapons lurking outside Kavanaugh's house in the middle of the night.

For months, speculation swirled about who leaked the draft opinion.

Supreme Court Justice John John Roberts ordered an official investigation that was led by the Marshal of the Court, Gail Curley.

In January 2023, more than eight months after the leak, Curley finally released her report, which turned up nothing.

The investigation did not identify the person responsible for the leak.

Curley interviewed 82 Supreme Court employees who had access to the draft opinion written by Justice Samuel Alito, and all 82 employees had to to sign a sworn affidavit on penalty of criminal prosecution if they were found to be lying.

Investigators accessed call and text message logs from all the employees' personal cell phones.

They combed through computer search histories and printer logs.

And after all of that effort, the report concluded that none of them were behind the leak.

But there was one curious omission from the report: the nine Supreme Court justices were not subjected to the same scrutiny as these other 82 personnel.

The omission was odd enough that a follow-up statement was released the day after the report came out in which the head of the investigation, Gail Curley, said, quote, During the course of the investigation, I spoke with each of the justices, several on multiple occasions.

The justices actively cooperated in this iterative process, asking questions and answering mine.

I followed up on all credible leads, none of which implicated the justices or their spouses.

On this basis, I didn't believe that it was necessary to ask the justices to sign sworn affidavits.

But considering the track record of elite expertise and left-wing activism in our judicial system,

maybe she should have.

We constantly rely on experts to make decisions for us.

Because even eyewitnesses and experts can get it wrong.

But experts do get things wrong.

You have to seek out sources from other points of view and then critically examine their motivations and credibility as well.