Brandeis, Louis

Brandeis, Louis (1856–1941), attorney, reformer, associate justice of the U.S. Supreme Court.Born in Louisville, Kentucky, Brandeis graduated from Harvard Law School in 1877 and for thirty‐seven years practiced law in Boston. His eminent reputation in commercial practice rested on his mastery of facts and spacious vision of law. Drawn to many of the reform causes of the Progressive Era, he became a confidant and adviser to President Woodrow Wilson, shaping much of Wilson's “New Freedom” program. Brandeis spoke for the strand of Progressivism that feared corporate bigness and concentration and put its faith in local forms of self‐government as “laboratories of democracy.” In Miller v. Oregon (1908), Brandeis pioneered the “Brandeis brief,” an argument relying more on facts and social science evidence than on legal precedent or syllogism. In 1914, Brandeis espoused Zionism and became a leader of the American wing of the movement.

In 1916, Wilson nominated Brandeis to the Supreme Court. Despite unprecedented conservative and anti‐Semitic attacks on Brandeis, he was confirmed and served for twenty‐three years. He advocated judicial self‐restraint in cases involving state economic regulation, urging deference to legislative policy judgments. Usually in dissent during the chief justiceships of William Howard Taft (1921–1930) and Charles Evans Hughes (1930–1941), he repeated his Brandeis‐brief technique, amassing facts and statistics to demonstrate that the legislative judgment was reasonable. Believing that the diversity‐of‐citizenship jurisdiction of the federal courts permitted large corporations to evade state regulation, Brandeis required federal judges to follow state substantive law in Erie Railroad v. Tompkins (1938).

On issues of personal liberty, however, Brandeis was a vigilant judicial activist, hostile to laws that inhibited speech and press. His demand for a speech‐protective reading of the “clear and present danger” test articulated by Justice Oliver Wendell Holmes Jr. in Schenck v. United States (1991), eventually prevailed in Brandenburg v. Ohio (1969). His eloquent call in the Whitney v. California (1927) concurrence for civic courage in defense of First Amendment rights similarly gained canonical status in Dennis v. United States (1951). In a seminal 1890 law‐review article, Brandeis had developed the concept of a right of privacy protected by the Bill of Rights, a position he adopted in his Olmstead v. United States (1928) dissent. This, too, the Court later affirmed in Griswold v. Connecticut (1964) and Roe v. Wade (1973).

Though critical of the use of judicial power to frustrate state economic regulation, Brandeis had a profound reverence for the Supreme Court and for the rule of law. He therefore strenuously opposed President Franklin Delano Roosevelt's 1937 court‐packing plan as an assault on both.
See also Anti‐Semitism; Censorship; Civil Liberties; Corporatism; Judaism.

Bibliography

Melvin I. Urofsky , A Mind of One Piece: Brandeis and American Reform 1971.
Philippa Strum , Louis D. Brandeis: Justice for the People, 1984.

William M. Wiecek