Brandeis, Louis Dembitz

BRANDEIS, LOUIS DEMBITZ

The appointment of Louis Brandeis (1856–1941) to the U.S. Supreme Court made him the first Jewish Supreme Court Associate Justice in the nation's history. Before his appointment, Brandeis led a varied and successful professional life as a public advocate, a progressive lawyer, and a Zionist. Brandeis served the nation's highest court from 1916 until his retirement in 1939.

Louis Dembitz Brandeis was born November 13, 1856, in Louisville, Kentucky. His parents, Adolph and Frederika Dembitz Brandeis, were Czechoslovakian refugees who fled the failed liberal Revolution of 1848. Brandeis was raised in a family atmosphere that was intellectual, open-minded, progressive, and dedicated to freedom. This had positive impact on his character throughout his life.

Adolph Brandeis was a prosperous grain merchant. Although Louis attended public schools in Louisville, his father's wealth enabled him to spend three years in Germany where he studied at the Annen Realschule in Dresden. At the age of 18, Brandeis entered Harvard Law School, where he completed a three-year program in two years. He graduated with the highest grades received to that date in the law school's history.

After a brief period in St. Louis, Missouri, Brandeis returned to Boston in 1879 and soon established a profitable law practice. He argued and won his first U.S. Supreme Court case in 1889 on behalf of the Wisconsin Central Railroad. He also became known as "the people's lawyer" because of his pro bono (without pay) advocacy in cases involving the public interest.

In 1890 Brandeis and his former partner Samuel Warren jointly published a path-breaking article in the Harvard Law Review, "The Right to Privacy." From

the bench, Brandeis would later support this new legal concept which his article helped promote.

By the mid-1890s Brandeis's law practice was earning more than $70,000 a year, an enormous amount by the standards of the day. In 1891 Brandeis married his second cousin, Alice Goldmark, and the two dedicated themselves to public service. Through their frugal living and careful investments, they became millionaires before 1900. As their wealth grew, so did their generosity. Between 1905 and 1939, they gave away approximately $1.5 million.

In 1908, arguing before the Supreme Court in Muller vs. Oregon, Brandeis defended the constitutionality of an Oregon statute limiting the labor of women in factories to ten hours a day. In a precedent-setting brief, he included a mass of legislative and statistical data relating to the condition of women in industry along with his legal arguments. As a result, the court was forced to consider its decision in light of both the law and contemporary economic reality. Brandeis's brief became a legal model for those lawyers, judges, and social welfare proponents who were determined to humanize industrial working conditions. Associate Supreme Court Justice Felix Frankfurter wrote several years later, "The Muller case is epoch-making, not because of its decision [the Court upheld the Oregon statute], but because of the authoritative recognition by the Supreme Court that the way in which Mr. Brandeis presented the case . . . laid down a new technique for counsel charged with the responsibility of arguing such constitutional questions, and an obligation upon courts to insist upon such method of argument before deciding the issue."

Before Muller, Brandeis had tried for years to minimize what writer and sociologist Thorstein Veblen called "the discrepancy between law and fact." The law, Brandeis argued, often did not correspond to the economic and social circumstances in America. The danger, he said, was that "a lawyer who has not studied economics and sociology is very apt to become a public enemy."

Brendeis spent ten years acting as counsel for persons advocating and defending progressive laws throughout the country. His work caught the attention of the current presidential administration. On January 28, 1916, President Woodrow Wilson (1856–1924) nominated Brandeis, then 59, to the U.S. Supreme Court. His activism, however, made confirmation difficult. Two years before his nomination, Brandeis had published two influential books: Other People's Money and How the Bankers Use It (1914) and Business, a Profession (1914). Both books were critical of business practices of the time, particularly those of investment bankers. For over four months the Senate Judiciary Committee heard heated testimony for and against Brandeis's nomination to the nation's highest court for more than four months. Some considered Brandeis's nomination to be a radical threat to the American legal system, but his appointment was finally confirmed by a 47 to 22 vote. The appointment broke an unwritten ban that had kept Jews from serving on the Supreme Court or in high positions of government.

Brandeis served on the high court through the Great Depression and post–World War I period. In his major judicial opinions Brandeis often concurred with the dissenting opinions of the great jurist Oliver Wendell Holmes. Many of their dissents were in defense of the First Amendment guarantees relating to freedom of speech. Following World War I (1914–1918), in several decisions upholding the Espionage Act of 1918, the Court, with only Justices Holmes and Brandeis dissenting, denied the right of free speech based on the argument that certain statements or opinions might provoke violent acts. For example, in Abrams v. United States, the Court upheld a 20-year jail sentence imposed on five Russian immigrants who had published two booklets protesting U.S. actions in their native land. The booklets contained a few quoted phrases from the Communist Manifesto. The Court, again with Brandeis in dissent, also held that pacifism on religious grounds was a legitimate cause for barring U.S. citizenship to an individual.

In a famous dissent from the New State Ice Company of Oklahoma City vs. Liebman, Brandeis summed up his philosophy: "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the state law, which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious or unreasonable. But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold."

Justice Brandeis resigned from the Supreme Court in February 1939. He died in 1941.

See also: Liberalism

FURTHER READING

Abraham, Henry J. Justices and Presidents: A Political History of Appointments to the Supreme Court. 2d ed. New York: Oxford University Press, 1985.

Bates, Ernest Sutherland. The Story of the Supreme Court. Indianapolis: Bobbs Merrill, 1938.

Burt, Robert A. Two Jewish Justices: Outcasts in the Promised Land. Berkeley and Los Angeles: University of California Press, 1988.

Konefsky, Samuel J. The Legacy of Holmes and Brandeis: A Study in the Influence of Ideas. New York: The Macmillan Company, 1956.

Mason, Alpheus Thomas. Brandeis: A Free Man's Life. New York: Viking Press, 1946.

Strum, Philippa. Brandeis: Beyond Progressivism. Lawrence, Kan.: University Press of Kansas, 1993.

it is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

louis brandeis, new state ice company of oklahoma city vs. liebman, 1932