Louis Dembitz Brandeis

Louis Dembitz Brandeis

As an associate justice of the U.S. Supreme Court, Louis Dembitz Brandeis (1856-1941) tried to reconcile the developing powers of modern government and society with the maintenance of individual liberties and opportunities for personal development.

As the United States entered the 20th century, many men became concerned with trying to equip government so as to deal with the excesses and inequities fostered by the industrial development of the 19th century. States passed laws trying to regulate utility rates and insurance manipulations and established minimum-wage and maximum-hour laws. Louis Brandeis was one of the most important Americans involved in this effort, first as a publicly minded lawyer and, after 1916, as a member of the U.S. Supreme Court.

Brandeis was born on Nov. 13, 1856, in Louisville, Ky., to Adolph and Fredericka Dembitz Brandeis. His parents were Bohemian Jews who had come to America in the aftermath of those European revolutionary movements of 1848 that had sought to establish liberal political institutions and to strengthen the processes of democracy so as to safeguard the dignity and potential for self-development of the common man.

In 1875, at the age of 18, Brandeis entered the Harvard Law School without a formal college degree; he achieved one of the most outstanding records in its history. At the same time he tutored fellow students in order to earn money (necessary because of his father's loss of fortune in the Panic of 1873). Although Brandeis was not the required age of 21, the Harvard Corporation passed a special resolution granting him a bachelor of law degree in 1877. After a further year of legal study at Harvard, he was admitted to the bar.

Early Legal Career

In 1879 Brandeis began a partnership with his classmate Samuel D. Warren. Together they wrote one of the most famous law articles in history, "The Right to Privacy, " published in the December 1890 Harvard Law Review. Init Brandeis enunciated the view he later echoed in the Supreme Court case of Olmstead v. United States (1928), in which he argued that the makers of the Constitution, as evidence of their effort "to protect Americans in their beliefs, their thoughts, their emotions and their sensations … conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men."

During this stage of his career, Brandeis spent much time helping the Harvard Law School. Though he declined an offer to become an assistant professor, in 1886 he helped found the Harvard Law School Association, an alumni group, and served for many years as its secretary.

Years of Public Service

By 1890 Brandeis had developed a lucrative practice and was able to serve, without pay, in various public causes. When a fight arose, for example, over preservation of the Boston subway system, he helped save it; similarly, he helped lead the opposition to the New Haven Railroad's monopoly of transportation in New England. The Massachusetts State Legislature's adoption of a savings-bank life insurance system was the result of his investigation of the inequities of existing insurance programs.

Brandeis also took part in the effort to bring legal protections to industrial laborers, and as part of this effort he contributed a major concept to Supreme Court litigation. In 1908, defending an Oregon law establishing wages and hours for women laborers, Brandeis introduced what came to be known as the "Brandeis brief, " which went far beyond legal precedent to consider the various economic and social factors which led the legislature to pass the law. Many lawyers followed the Brandeis brief and presented relevant scientific evidence and expert opinion dealing with the great social problems of the day mirrored in judicial litigation.

Appointment to the Supreme Court

President Woodrow Wilson offered Brandeis a position in his Cabinet in 1913, but the Boston lawyer preferred to remain simply a counselor to the President. Brandeis continued his investigations of the implications for democracy of the growing concentration of wealth in large corporations. In 1914 he published Other People's Money, and How the Bankers Use It, in which he set down his antimonopoly views.

Wilson's nomination of Brandeis to the Supreme Court on Jan. 28, 1916, aroused a dirty political fight. Six former presidents of the American Bar Association and former president of the United States William Howard Taft denounced Brandeis for his allegedly radical political views. Some anti-Semitism was involved, for Brandeis was the first Jew ever nominated for America's highest court. Finally, however, the fight was won in the Senate, and Brandeis took his seat on June 5, 1916, where he served with distinction until Feb. 13, 1939.

Brandeis often joined his colleague Oliver Wendell Holmes in dissenting against the Court's willingness to pose its judgments about economic and social policy against those of individual states. Also with Holmes, Brandeis bravely defended civil liberties throughout this era. If he did uphold wide use of state powers, it was only in the service of furthering individual self-fulfillment; he also rejected incursions of a state upon a citizen's liberty. Two examples are the Olmstead case (already noted), involving wiretapping, and Whitney v. California, in which Brandeis opposed a California law suppressing free speech.

Personal Interests

Brandeis married Alice Goldmark in 1891, and they had two daughters. Part of his personal life was his commitment to fellow Jews. He became a leading Zionist, supporting the attempt to develop a Jewish nation in Palestine.

Another of Brandeis's great interests was the building up of strong regional schools as a means of strengthening local areas against the threat of national centralization. To this end, beginning in 1924, he helped formulate and develop the law school and general library of the University of Louisville.

Brandeis died on Oct. 5, 1941. His commitments to justice, education, and Judaism were commemorated several years later in the founding of Brandeis University in Waltham, Mass.

Further Reading

The standard scholarly biography of Brandeis, unfortunately slim so far as his judicial career is concerned, is Alpheus Thomas Mason, Brandeis: A Free Man's Life (1946). A good introduction to his legal ideas is Samuel Joseph Konefsky, The Legacy of Holmes and Brandeis (1956). Alexander M. Bickel in The Unpublished Opinions of Mr. Justice Brandeis (1957) presents good examples of the justice's painstaking methods in preparing his judicial opinions. Paul A. Freund, Brandeis's former clerk, presents a moving portrait in Allison Dunham and Philip B. Kurland, eds., Mr. Justice (1964). For general historical background see Robert Green McCloskey, The American Supreme Court (1960), and Arthur M. Schlesinger, Jr.'s three volumes: The Age of Roosevelt: The Crisis of the Old Order (1957), The Coming of the New Deal (1959), and The Politics of Upheaval (1960). □