Brandeis, Louis Dembitz

Brandeis, Louis Dembitz (b. Louisville, Ky., 13 Nov. 1856; d. Washington, D.C., 5 Oct. 1941; ashes interred in portico of University of Louisville Law School), lawyer and associate justice, 1916–1939. Born to prosperous immigrants from Bohemia, Louis Brandeis grew up in an atmosphere of bourgeois German culture and constant talk about current events. Anticipating the depression of 1873, Brandeis's father, Adolph, closed down his wholesale grain business and took the family on an extended three‐year tour of Europe. During that time Louis attended the Annen‐realschule in Dresden, and while he did not care for the overly strict discipline, he later said that there he learned to think rigorously. Returning to the United States in 1875, he entered the Harvard Law School, then undergoing the great case‐study reform introduced by its dean, Christopher Langdell. Brandeis excelled at the law school, stayed on for a year of graduate work, and then began practice with a friend of his family in St. Louis.

Lonely and unhappy, he returned in one year to Boston to open a practice with his law school friend, Samuel Warren. The partnership prospered, and in time became one of the city's larger commercial firms. Brandeis was one of the new breed of lawyers responding to the demands of the Industrial Revolution, whom clients consulted prior to taking action to make sure they were not running afoul of the law. Brandeis developed a reputation as a lawyer who knew more about his clients' businesses than they did, a master of facts, and a courtroom advocate to be feared by opponents. By the 1890s, at a time when most lawyers in the United States made less than five thousand dollars yearly, Brandeis earned more than fifty thousand dollars.

An altruistic streak drove him to join the company of progressive reformers then seeking to ameliorate the harsher aspects of industrial life. He started first in Boston, fighting corrupt streetcar franchises, then tackled the insurance companies, and devised the plan for savings bank life insurance. Brandeis was the first to do this work without a fee, a practice that many of his contemporaries viewed as eccentric.

In 1908 Brandeis argued in defense of a state ten‐hour law for women in Muller v. Oregon, and introduced the “Brandeis brief,” a paradigm of what legal reformers at the time called “sociological jurisprudence.” Devoting only two pages to legal precedent, he spent more than one hundred pages detailing the latest studies about the effects of long hours on working women. This effort to educate the judiciary in the social and economic effects of legislation became the model for later defenses of reform measures.

Brandeis set out his philosophy as a lawyer and reformer in a speech to the Harvard Ethical Society in 1905, later reprinted and widely distributed under the title “The Opportunity in the Law.” There Brandeis charged that lawyers too often supported only the large corporations, to the detriment of the public. “Instead of holding a position of independence, between the wealthy and the people, prepared to curb the excesses of either,” he charged, “able lawyers have, to a large extent, allowed themselves to become adjuncts of large corporations.” Brandeis called on other lawyers to speak for the people and to be independent, a value he prized more highly than any other in his personal as well as his professional life.

By 1912 Brandeis had achieved a national reputation as “the people's attorney” and he helped Woodrow Wilson craft the basic arguments of Wilson's New Freedom. Brandeis, who believed bigness to be antithetical to democracy, suggested that the solution to the trust problem should not be regulation of monopoly, as Theodore Roosevelt argued, but regulation of competition, so that all business could compete on a fair playing field (see Capitalism). In 1914 Brandeis undertook another, and for him a new reform, Zionism, and for the next seven years headed the American Zionist movement.

Wilson had originally thought of making Brandeis his solicitor general, an idea that the business wing of the Democratic party quickly killed. Brandeis understood the politics involved and did not allow them to interfere in his close relationship with the president. In late January 1916 Wilson nominated Brandeis to the Supreme Court to succeed Joseph R. Lamar, and in doing so triggered a four‐month confirmation battle, in which conservative forces within American industry and the bar fought furiously to defeat the nomination. Wilson stood by Brandeis, and reform groups of all varieties also backed the nomination, which the Senate finally approved in June.

His twenty‐three years on the high court are in some ways a continuation of the type of law he had practiced for more than three decades. He showed himself to be the finest legal craftsman to sit on the Court in the twentieth century. But the advocate had to give way to the jurist, and he demonstrated most of the time a mastery of his own individual beliefs and in doing so defined the idea of judicial restraint.

As an advocate, Brandeis had attempted to instruct judges in the facts behind reform measures, and this practice he continued on the bench, although usually in dissent. When, for example, the Court in Burns Baking Co. v. Bryan (1924) struck down a Nebraska statute establishing a standard weight for a loaf of bread, Brandeis amassed evidence to show why the legislature had considered the measure necessary. He and his clerks would labor over his opinions, and then would say, “The opinion is now convincing. What can we do to make it more instructive.” Friends sometimes wished, as Harold Laski put it, that Brandeis opinions read a little less like Brandeis briefs.

Brandeis in dissent could be a powerful advocate, especially for causes he favored. But he also believed that the judiciary had no business second‐guessing the legislature, nor striking down laws simply because the judges did not agree with their underlying philosophy. When Oklahoma during the Depression enacted a licensing scheme that granted ice companies local monopolies, the Court struck it down. One might have expected Brandeis to vote with the majority, but he dissented, and eloquently pleaded with his brethren to allow states to experiment with different plans, no matter how wise or foolish. “If we would guide by the light of reason,” he declared in New State Ice Co. v. Liebmann (1932), “we must let our minds be bold.” Thus, during the 1930s, Brandeis voted in most instances to uphold New Deal legislation, even though he privately opposed much of it on grounds that big government constituted as much of a menace to democracy as big business.

Although Brandeis believed that judges should defer to the legislature in matters of economic policy, he took a different tack when governmental laws or policies affected individual liberties. Shortly after World War I the Court heard a series of cases involving prosecutions under the Espionage Act of 1917 as well as state sedition laws. In the first case, Schenck v. United States (1919), Oliver Wendell Holmes approved such restrictions under a “clear and present danger test.” Although Brandeis voted with the majority, he felt uncomfortable, and soon afterward he and Holmes began dissenting. In the first case in which he wrote the dissenting opinion, Schaefer v. United States (1920), Brandeis set about the task of converting the Holmes test into a constitutional rule to protect speech rather than permit its restriction. (See Speech and the Press.)

In his dissenting opinion in another 1920 case, Gilbert v. Minnesota, Brandeis suggested that the liberty guaranteed by the Fourteenth Amendment went beyond property rights to include personal freedoms as well, the first time that a justice had suggested that the Fourteenth Amendment might apply the Bill of Rights against the states. Within a few years the Court in Gitlow v. New York (1925) accepted this idea in regard to freedom of speech. Through the process of incorporation the Court gradually expanded the idea to most of the other protections of the first eight amendments.

Brandeis, however, went far beyond the conservatives who sat on the Taft and Hughes Courts in his advocacy of free speech, and he penned one of the most eloquent defenses of free expression in his concurring opinion in Whitney v. California (1927). The men who won our independence, he declared, “believed that freedom to speak as you will and to speak as you think are indispensable to the discovery and spread of political truth. … To courageous, self‐reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. … Such, in my opinion, is the command of the Constitution” (p. 376).

Although the word “privacy” is not found in the Constitution, Brandeis had long believed privacy one of the most precious rights. He and Samuel Warren had written a pioneering law review article on the subject in 1890, and he returned to the theme in his dissent in Olmstead v. U.S. (1928). The Court had held that wiretapping did not constitute a violation of the Fourth Amendment, and Brandeis objected to this invasion of privacy. “The makers of our Constitution,” he declared, “conferred, as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men” (p. 478). Ultimately, the Court adopted the idea of a constitutionally protected right of privacy in Griswold v. Connecticut (1965).

Although Brandeis, like Holmes, came to be known as a dissenter, he wrote 454 of his 528 opinions for the Court. Most of these are far shorter and less fact‐crammed than his dissents, since he knew that he had to tailor his writing to reflect the views of at least four other justices. Brandeis understood, however, the value of elaboration in his dissents, for there he laid the groundwork for the future. As he once told Felix Frankfurter, “my faith in time is great.”

Brandeis had an almost mystic faith in the Court, and he revered it as an institution. He believed that the Court and in fact the federal courts as a whole should have limited jurisdiction, since in a federal system they should deal only with those issues that truly went beyond the concerns of the states. The bulk of litigation should take place in the state courts, and he objected to the old rule of Swift v. Tyson (1842) that allowed federal courts to ignore state law in favor of a federal common law. This had led commercial litigants to remove their cases to federal courts, where they could evade many state commercial restrictions. Brandeis objected to this practice continuously, and finally won over the Court in Erie Railroad Co. v. Tompkins (1938), which forced federal courts to follow state rules and did away with forum shopping.

Publicly Brandeis held to a strict standard of judicial behavior, refusing to comment on the work of the Court or even accept an honorary degree. Recent scholarship, however, has shown that he played an extraordinarily active role in the political affairs of his time, often using as a surrogate Professor Felix Frankfurter of the Harvard Law School. Especially during the New Deal, Brandeis consulted often with members of the administration and even with President Franklin D. Roosevelt. While there is no evidence that his off‐the‐court activities had any effect on his judicial behavior, it violated both his own professed rules of judicial restraint as well as what we would now consider acceptable conduct by a Supreme Court justice.

Aside from this, Brandeis's reputation as one of the great justices in Supreme Court history is secure. His defense of freedom of speech and the right to privacy were adopted and expanded by later courts. His advocacy of judicial self‐restraint and deference to the legislative branches in matters of economic policy also won out, and he lived to see the Court move away from the use of substantive due process to strike down reform measures. His use of facts and nonlegal materials to understand the impact of law upon society and economics has now become commonplace. But perhaps more than anything else, his craftsmanship as a judge in defining and elucidating the law set a standard for all who followed.

Bibliography

Alpheus T. Mason , Brandeis: A Free Man's Life (1946).
Bruce A. Murphy , The Brandeis/Frankfurter Connection (1982).
Philippa Strum , Louis D. Brandeis: Justice for the People (1984).
Melvin I. Urofsky and David W. Levy, eds., Letters of Louis D. Brandeis, 5 vols. (1971–1978).

Melvin I. Urofsky