The Myth of Justice McReynolds and Justice Brandeis

In an otherwise terrific book by Justin Driver and in a recent post by Sandy Levinson over at Balkinization (where I also blog), the false story that Justice McReynolds refused to sit next to Justice Brandeis one year for the Court's official photograph was repeated. The story was debunked in a recent article in the Journal of the Supreme Court Historical Society. It has no factual basis--it was invented decades after the fact.

The story does capture the larger point that McReynolds was an Anti-Semite. That is true. But there are lots of ways to explain that which are not false.