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

BRANDEIS, LOUIS D. 1856-1941

Consumer advocate; associate justice of
the supreme court

Acting in the Public's Best Interest

It seems unlikely that a man who devoted so much of his early career to becoming a successful corporate lawyer would, at the pinnacle of his success, suddenly choose to involve himself in the most controversial issues of his day. Yet that was exactly what Louis D. Brandeis, a man who had become a millionaire before the age of fifty, did, and his decision to pursue a life of service to his fellow countrymen set him on a course that would prove as problematic for him as it was rewarding. In 1916 Brandeis became an associate justice of the U.S. Supreme Court and served with distinction until his retirement in 1939. His significance as a historic figure during the 1910s, however, has less to do with his appointment to the Court than with his accomplishments as a dedicated and brilliant advocate on behalf of the public interest. He was a man devoted to the highest principles of service and of his profession. Unique among his peers, he became known as the "people's lawyer."

Boston Lawyer

The son of Jewish immigrants, Brandéis grew up in Louisville, Kentucky, where he fell under the influence of an uncle whose work as a lawyer proved fascinating to him. Following two years of study in Germany, Brandeis enrolled in Harvard Law School, from which he graduated in 1877 with the best academic record in the school's history. After a brief stint with his brother-in-law's firm in Saint Louis, he joined with a former classmate to found the law firm of Warren and Brandeis in Boston. He and his partner made much use of the social and professional relationships and associations they cultivated in the interest of enhancing their practice, and the effort proved worthwhile insofar as the firm's fortunes were concerned. By 1890 the partnership had grown and was servicing important business and manufacturing firms throughout New England. Their success eventually brought Brandeis some measure of financial independence, an achievement that gradually freed him to apply himself to interests and pursuits of an entirely different sort.

The People's Lawyer

Brandeis was a brilliant student and legal scholar (Dean Acheson, who served under him as a clerk after Brandeis had become a justice, once remarked that Brandeis wrote the opinions and that he merely contributed the footnotes). He was also an avid reader, well versed in such issues as those concerning the conditions of labor and the poor, who suffered injustices he found intolerable. The writings of reformers Henry George and Henry Demarest Lloyd greatly impressed him, but nothing equaled the impact upon his conscience and his faith in social justice as did the events surrounding one of the most violent strikes in the nation's history. The Homestead strike of 1892 did not actually set him on the path toward legal and social reform for which he became so famous in the early part of the decade—his work with the Public Franchise League in attacking exclusive public utility contracts predated the outbreak of industrial warfare in Pennsylvania—but it did convince him that the public's need for protection was greater than he had ever imagined and required an advocate prepared to make sacrifices on its behalf. Brandeis's work as an unpaid attorney for the holders of industrial life insurance policies in New England, and his success in fashioning a solution that reflected both his legal expertise, and his knowledge of business practices established a pattern in his life from which he did not deviate until his elevation to the Supreme Court, His reputation as a selfless advocate for the worker was strengthened by his involvement in 1906 in the case of Muller v. Oregon, which ultimately required him to appear before the Supreme Court to convince its justices of the state of Oregon's right to impose and enforce laws governing work hours in the interest of the workers' safety and health.

The Advocate

The methods Brandeis used to protect the interests of his clients were sometimes quite unorthodox, but always practical, and clearly reflected his interest in accumulating as much information as possible as a prelude to action. As the attorney for stockholders in the Boston and Maine Railroad, for example, he had attempted to prevent the railroad's merger with the larger New Haven Railroad in order to prevent the latter from gaining a monopoly over railroad lines throughout New England. Between 1912 and 1913, in an effort to mobilize public opinion against the merger, he wrote a series of articles that appeared in Harper's Weekly, documenting many of the unethical practices of those involved in the merger effort. But it was not until the New York City garment strike in 1910 that the genius Brandeis had repeatedly displayed in his past became more widely recognized. The strike involved some sixty thousand laborers whose protest of conditions in the shops drew nationwide attention and the support of many reform-minded people, but the hardships it brought over time to the strikers made finding some solution to the turmoil all the more imperative. The strikers, many of whom were women, had been subjected to problems ranging from police brutality to harsh treatment at the hands of unsympathetic judges; the respect they had garnered from the public hardly made up for the depletion of their resources. Into this picture stepped Louis Brandeis, who, at the invitation of some of the strikers' sympathizers, proposed a solution that incorporated a provision for the gradual replacement of the nonunion workers with those with union membership and further provided for improved conditions and stepped-up increases in wages. The plan permitted the shop owners time to adjust to the increased cost of doing business. Brandeis also created a protocol that provided a method by which future disputes could be resolved without recourse to strikes, a formula for industrial peace that, along with its author, became much acclaimed in the nation's press.

The Political Arena

Brandeis's prominence and growing circle of reform-minded acquaintances eventually involved him in a political scandal that touched President William Howard Taft, the Ballinger-Pinchot affair. Former president Theodore Roosevelt regarded conservation as his prize domestic achievement, an accomplishment attributable in great part to the efforts of the nation's chief forester, Gifford Pinchot, Roosevelt's successor, Taft, replaced the secretary of the interior, Pinchot's superior, with a man of his own choice, Richard Ballinger. Ballinger, closely associated with those who opposed the expansive conservation program for which Pinchot and Roosevelt had been jointly responsible, used his position to convince President Taft that Roosevelt had acted without proper authority in withdrawing millions of acres of land from development. With the president's approval, Ballinger validated the claims of several companies to the rich coal fields of Alaska in which, unknown to the president, Ballinger's business associates had a stake. Alerted to this plan by one. of the department's employees, Louis Glavis, Pinchot went public with the details. Both men were fired for insubordination. During the congressional hearings that followed, Brandeis, who had been retained to represent Glavis, demonstrated, much to the president's embarrassment, that the internal report the president claimed to have relied upon in his decision to fire Glavis had not, in actual fact, been prepared until after the president had discharged him. Brandeis's role in this affair would win him the enmity of many Republican conservatives, the admiration of numerous progressives, and a reputation, in combination with his record as a public advocate, for "radicalism," which would return to haunt him during his confirmation hearings in connection with his appointment to the High Court.

From Presidential Adviser to Associate Justice

Early in 1916 President Woodrow Wilson announced that he was nominating Brandeis to the Supreme Court, a decision that caused enormous controversy, but that clearly demonstrated the president's resolve to fulfill the remaining promises of his New Freedom platform. Brandeis had long served the president as a political adviser and troubleshooter, providing then-candidate Wilson, in 1912, with the benefit of his experience and insight regarding the major issues of the day and speaking for Wilson's candidacy throughout the Northeast. So respected was Brandeis's reputation for fairness and wise counsel that he was asked in 1913 to resolve a conflict that had arisen within the Democratic Party over the structure of the Federal Reserve System, a conflict he resolved in a manner that left virtually no sense of rancor among the disputants. Sometime later, he was prevailed upon to draft what would become the Federal Trade Commission Act of 1914. His appointment to the Court, then, seemed no more than a logical outgrowth of the service he provided the party and its president. However, it frightened many within the business community, who saw Brandeis as a radical representing forces that were inimical to the interests of business. It antagonized others who disapproved of his involvement in the Zionist cause, and it alienated the American Bar Association, which challenged his impartiality and lack of judicial experience. After four months of heated debate during which seven of the ABA's former presidents spoke out against his nomination, the Senate confirmed the appointment by a vote essentially along party lines. Louis Dembitz Brandeis finally took his place on the Supreme Court bench.

Mr. Justice Brandeis

Not until succeeding decades did Brandeis's contributions to the Court and to the nation as a justice achieve the significance with which they would come to be viewed; but that does not diminish his work in the years immediately following his confirmation. Brandeis had been instrumental in conceiving and planning the role of the Federal Trade Commission, believing, as he did, that government had a responsibility to regulate the economy in the public interest. His views did not change after he assumed his duties with the Court, and he consistently proved willing to allow the legislative branch, whether state or federal, wide latitude in its experimentation on behalf of the public interest. Often in the minority in this regard, he would frequently find himself closely allied with yet another great justice, Oliver Wendell Holmes Jr., whose commitment to the doctrine of judicial restraint was unshakable. A believer in social experimentation, as well, he would soon be viewed as the Court's most liberal member, a reputation that would be enhanced by his strong opposition to the government's interference with fundamental civil liberties.

Sources:

Editorial, Outlook (11 June 1910);

Alpheus Mason, Brandeis: A Free Man (New York: Viking, 1946);

Philippa Strum, Louis D. Brandeis: Justice for the People (Cambridge, Mass.: Harvard University Press, 1984).

Brandeis, Louis Dembitz

WORKS BY BRANDEIS

SUPPLEMENTARY BIBLIOGRAPHY

Louis Dembitz Brandeis (1856–1941) was born in Louisville, Kentucky. His parents had migrated in 1848 from Bohemia to the United States, where his father became a prosperous grain merchant. Neither of his parents had participated in the European revolutions of 1848, but they had suffered from the severity with which the revolutions were crushed. Finding in America the freedom Europe had denied them, Brandeis’ parents passed on their liberal views to their son.

Brandeis’ family had no formal religious affiliation and no racial–cultural interests, such as knowledge of Hebrew and the Talmud, and his friends were both Jew and gentile; nevertheless, in 1912 he became a Zionist. During his years on the United States Supreme Court (1916–1939), all his extrajudicial activities and interests were curtailed, but his belief in Zionism never faltered, and in the years immediately preceding his death, Zionism again became a matter of absorbing interest to him.

His mother and his uncle, Lewis Dembitz, a Kentucky lawyer and scholar of uncompromising integrity, were influential in shaping his moral and intellectual standards. In 1891 Brandeis married Alice Goldmark of New York, who encouraged his public welfare crusades. Brandeis credited his wife with reinforcing his determination to carry on when critics bitterly assailed him as a radical who waged war on cherished economic institutions.

Brandeis was educated at private and public schools in Louisville, at the Annen Realschule in Dresden, Germany, in 1874 and 1875, and at the Harvard Law School, from which he received his LL.B. degree in 1877. He was admitted to the St. Louis bar in 1878. After a few months there he returned to Boston, practicing first with his friend and Harvard Law School classmate, Samuel Dennis Warren, and later as partner in the firm Brandeis, Dunbar, and Nutter.

Brandeis began his professional and public career just as the free enterprise system was beginning to crystallize into a structure of corporate and supercorporate monopolies. As a corporation lawyer, Brandeis drew his clients primarily from the ranks of big business. He became a millionaire by 1907 and a multimillionaire by 1915. For a while he was welcome in high financial and professional circles, as well as among “Proper Bostonians.” Early in his professional career, charitable and other good causes engaged his attention and imagination, as was conventional among Boston’s financial and social elite. What distinguished Brandeis’ reformism from that of other public-spirited citizens was his invariable habit of coupling disclosures of evil with specific proposals for their remedy.

His inventive genius is reflected in the so-called sliding-scale utility rate, the savings bank life insurance plan, and the preferential union shop. The sliding scale, adopted in Boston, permitted profit sharing between the utility company and the consumer and provided a bilateral bonus for efficiency. As the dividend to stockholders rose, the selling price of gas to the consumer fell. Savings bank life insurance, available in Massachusetts, New York, and Connecticut, provides an alternative to high-priced commercial insurance to those with low incomes. The preferential union shop was prescribed by Brandeis in 1910 for the New York garment industry as a more palatable substitute for the open shop, which had been making it difficult for the garment union to grow.

Public attention was first drawn to Brandeis in 1897, when he appeared before the Massachusetts legislature to urge that the Boston Elevated Rail-road Company be curbed in its drive for monopoly and privilege. Other campaigns of the same kind brought him prominence both in the state and nationally. Undertaken without fee, these activities soon won for him the title, “people’s attorney.” Driving him on was the conviction that bigness and monopoly are inimical to efficiency, true laissez-faire, and democracy.

Brandeis saw the rise of the masses, organized in trade unions and other social groups, as the natural outcome of a changed and changing social order. Power was moving from the few to the many. It was not informed statesmanship to try to freeze privilege or to thwart change indiscriminately; neither was it desirable or safe to stand aloof from the struggle. The reformer’s role was to guide the forces of social experimentation and thus to direct change along the lines of evolution rather than of revolution.

This approach is exhibited in Brandeis’ argument in support of hours-of-labor and minimum-wage legislation. In 1908, after the Supreme Court had denied the possibility of establishing a factual relationship between poor health and long hours of employment in a bakery, he prepared, with the help of his sister-in-law, Josephine Goldmark, of the National Consumers’ League, the famous “Brandeis brief” (Brandeis 1908). Only a few pages were devoted to the law; much factual data, foreign and domestic, was amassed to demonstrate that the Oregon legislature, when it enacted an hours-of-labor law for women, could reasonably have believed that a relationship existed between long hours and the health of the workers. In recent years this kind of brief has become the lawyer’s stock in trade. Though factual exploration was characteristic of all Brandeis’ public welfare activities, he recognized that facts alone furnish no panaceas. They are primarily helpful—indeed indispensable—in sharpening the questions to be asked and in choosing the methods to be followed in fashioning a cure.

In 1912 Brandeis became a sort of one-man brain trust for Woodrow Wilson in the New Jersey governor’s successful bid for the presidency. Wilson seriously considered Brandeis for a cabinet post, but the public image of him as a radical made the choice seem politically ill-advised. In January 1916, President Wilson appointed Brandeis associate justice of the Supreme Court, stimulating the fiercest protest ever lodged against a nominee for the high bench. After five months of debate the Senate confirmed the appointment by a vote of 47 to 22.

Brandeis brought to his judicial task a precise technical knowledge of constitutional issues, and an informed political outlook based on long study and experience in practical affairs. Except when basic freedoms were involved, he took a latitudinarian view of the power to govern. At a time when the constitution had become for reactionary judges an instrument for preserving the status quo, it was for him, as for Woodrow Wilson, a “vehicle of the nation’s life” (Wilson [1908] 1917, p. 158).

There must be power in the States and the Nation to remold, through experimentation, our economic practices and institutions to meet changing social and economic needs. … To stay experimentation in things social and economic is a grave responsibility.… This Court has the power to prevent an experiment. We may strike down the statute 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. (New State Ice Company v. Liebmann, 285 U.S. 262, 1932, p. 311)

Few men live to see their ideas become realities, their views accepted, their philosophy enacted and upheld as the law of the land. That reward did come to Brandeis. By the time of his death, the scope of government action had been enlarged as judicially created barriers against the government’s power to regulate the economy were erased. However, in another respect the government’s power had been limited: Brandeis had joined Oliver Wendell Holmes, Benjamin Cardozo, Harlan F. Stone, and Charles Evans Hughes in laying the foundation for the assertion of judicial responsibility for a “fundamental principle of the American Government,’ the protection of freedom of speech, press, and assembly. “Those who won our independence by revolution,” Brandeis had written in 1919, “were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. . . . Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom” (Whitney v. California, 274 U.S. 357, 1927, p. 377).

Brandeis retired in 1939 and died in his Washington apartment in 1941, in surroundings more modest than he had known at the start of his life. Although he had never held political office or employed the techniques of politics or partisan organization, he had used his skills as a lawyer, publicist, and judge to promote change through the use of informed reason and the orderly processes of law. In cases involving government action to curb espionage and other alleged subversive activities, he upheld a man’s freedom to think as he will and to speak as he thinks as “indispensable to the discovery and spread of political truth” (Whitney v. California, 274 U.S. 357, 1927, p. 375). This, he believed, was the only effective path to freedom and security.

Alpheus Thomas Mason

[For the historical context of Brandeis’ work, seeJudiciary; Welfare state; and the biographies ofCardozo; Holmes; Pound. For discussion of the subsequent development of Brandeis’ ideas, seeConstitutional law.]

WORKS BY BRANDEIS

(1908) 1912 Women in Industry: Decision of the United States Supreme Court in Curt Miller v. State of Oregon. Pages 558–563 in Josephine C. Goldmark, Fatigue and Efficiency: A Study in Industry. New York: Charities Publication Committee.

(1913–1914) 1933 Other People’s Money and How the Bankers Use It. Washington: National House Library Foundation. → First published in Harper’s Weekly.

(1914) 1933 Business: A Profession. Boston: Hale, Cushman & Flint.

1934 The Curse of Bigness: Miscellaneous Papers of Louis D. Brandeis. New York: Viking.

1942 Brandeis on Zionism: A Collection of Addresses and Statements. Washington: Zionist Organization of America.

SUPPLEMENTARY BIBLIOGRAPHY

Goldmark, Josephine C. 1912 Fatigue and Efficiency: A Study in Industry. New York: Charities Publication Committee.

Mason, Alpheus T. 1946 Brandeis: A Free Man’s Life. New York: Viking. → Contains a list of Brandeis’ major writings, as well as of books published about him.

Mersky, Roy M. 1958 Louis Dembitz Brandeis, 1856–1941: A Bibliography. Yale Law Library Publications, No. 15. New Haven: Yale Law School.

Wilson, Woodrow (1908)1917 Constitutional Government in the United States. New York: Columbia Univ. Press.

BRANDEIS, LOUIS DEMBITZ

Louis Dembitz Brandeis's lifelong commitment to public service and social reform earned him the epithet the People's Lawyer. His twenty-three years on the Supreme Court were characterized by a deep respect for civil liberties and by an abiding distrust of centralized power in the hands of business and government.

Brandeis was famous for his prodigious intellect and his well-crafted, detailed dissents. He was a man of principle who enhanced the image of the legal profession by living up to his belief that lawyers should possess "the moral courage in the face of financial loss and personal ill-will to stand for right and justice."

Brandeis was born November 13, 1856, in Louisville, Kentucky, the youngest of four children of Adolph Brandeis and Fredericka Dembitz Brandeis. His parents were refined and well-to-do immigrants who left Prague, then part of Bohemia, in 1849. A brilliant student, Brandeis excelled in the public schools in Louisville. He also attended the Annen-Realschule, in Dresden, Germany, during his family's 1873–75 pilgrimage to Europe.

Although Brandeis did not have a college degree, he was admitted into Harvard Law School and graduated at the top of his class in 1877. Brandeis had an obvious passion for law and he considered the years at Harvard among the happiest in his life. His ties to the university were strengthened further in 1886 when he became one of the founders of the influential Harvard Law Review. Brandeis and Samuel D. Warren wrote a legendary article, "The Right to Privacy," in the December 1890 issue of the Review. It previewed Brandeis's Supreme Court opinions asserting privacy as a constitutionally guaranteed right.

After a year of graduate work Brandeis moved to St. Louis in 1878 to begin a law practice. He soon missed the intellectual stimulation of the East Coast and moved back to Boston, where he began a successful law practice with Warren. Their large firm had an impressive clientele and made Brandeis wealthy, although money held little interest for him. As he established himself professionally, Brandeis socialized with Boston's intellectual elite. In 1891, he married Alice Goldmark, a distant cousin, with whom he had two daughters.

Brandeis zealously embraced the ideals of the Progressive movement of the early twentieth century. He proved his dedication to social reform by serving as unpaid counsel in several public interest cases. Brandeis was one of the first U.S. lawyers to offer pro bono services (free legal services for people unable to afford an attorney). Along with a passionate belief in the virtue of volunteer legal work, Brandeis had a sense of fairness that compelled him to compensate his firm for any time spent in public service.

Brandeis worked without a fee to fight monopolistic streetcar franchises in Boston and to improve the questionable practices of life insurance companies. One of his most satisfying achievements was the creation of a savings bank plan that enabled people to obtain life insurance at reasonable rates. Brandeis also argued for the constitutionality of maximum hour and minimum wage laws.

In 1914, Brandeis published Other People's Money—and How the Bankers Use It, a denunciation of trusts and investment banking. The book helped inspire important antitrust legislation and earned the antipathy of many U.S. bankers and businesspeople.

"Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficient."
—Louis Brandeis

Brandeis also created a new style of legal writing, appropriately called the Brandeis brief.

With his sister-in-law Josephine Goldmark, of the National Consumer's League, Brandeis produced the first legal brief to include copious supporting data. For Muller v. State of Oregon, 208 U.S. 412, 28 S. Ct. 324, 52 L. Ed. 551 (1908), Brandeis wrote more than one hundred pages in favor of an Oregon state law mandating a maximum ten-hour workday for women. Later, when asked for an appropriate title for the seminal Muller brief, Brandeis replied, What Any Fool Knows. In the document, he described the deleterious physical and mental effects on women of extended periods of manual labor. He included references to sociology, psychology, history, politics, employment statistics, and economics; this method of amassing data from several different disciplines to persuade the court became popular with other lawyers. The legal principles of the case were discussed in about two pages.

In 1916 Brandeis was appointed by President woodrow wilson to fill the associate justice seat vacated by Joseph R. Lamar. Brandeis thus became the first Jewish American to be nominated for the High Court. His Senate confirmation hearing was a bitter, drawn-out affair because of business's fierce opposition to him and his progressive politics. Anti-Semitism was also an element in the extended, four-month proceedings. Despite virulent criticism from insurance and banking officials, Brandeis was confirmed by the Senate, 47–22.

As a Supreme Court justice, Brandeis is remembered for his eloquent dissents, often joined by colleague oliver wendell holmes jr. Brandeis's dissents frequently signaled how the Court would rule in future cases. For example, his 1928 dissent in olmstead v. united states, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944, anticipated the reasoning and outcome of a Supreme Court case heard years later.

In Olmstead, Brandeis objected to the nearly unrestricted use of government wiretaps. Although the Olmstead majority approved state wiretapping unless a physical trespass was involved, Brandeis considered wholesale eavesdropping unconstitutional. In his view it violated the fourth amendment, prohibiting unreasonable government searches, and the fifth amendment, forbidding the deprivation of liberty without due process. Brandeis argued that the right to be left alone was guaranteed by the Constitution.

Almost forty years later, his views on privacy were adopted in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). In Katz, relying heavily on Brandeis's reasoning, the Court overturned Olmstead, ruling that government

wiretaps were permissible only if they met procedural requirements of the Fourth Amendment.

Despite his own clear convictions, Brandeis refused to declare a law unconstitutional simply because he disagreed with it. Particularly in economic matters, Brandeis exercised judicial restraint by deferring to Congress and its legislative power.

Brandeis was an ardent defender of civil liberties. Throughout his career, he strongly urged the Court to use the fourteenth amendment to apply the bill of rights to the states. In particular, Brandeis declared that laws abridging free speech and assembly must be challenged if no emergency exists to justify them. Unless speech causes clear and imminent danger, it is unreservedly protected.

Although Brandeis was a nonobservant Jew, he was a respected leader of the American Zionist movement. From 1914 to 1921, Brandeis gave his name and public support to the movement to create a Jewish state in Palestine. In his later years Brandeis advised President franklin d. roosevelt on the establishment of a Jewish homeland and the boycott of German products.

Brandeis retired from the Court on February 13, 1939. He died at age eighty-four, on October 5, 1941.

Brandeis was honored in 1948 when a new institution of higher learning was named after him. Brandeis University is a private, Jewish-sponsored, coeducational college in Waltham, Massachusetts. The nonsectarian school offers both undergraduate and graduate degrees.

further readings

Baskerville, Stephen W. 1994. Of Laws and Limitations: An Intellectual Portrait of Louis Dembitz Brandeis. Rutherford: Fairleigh Dickinson Univ. Press.

Bracey, Christopher A. 2001. "Louis Brandeis and the Race Question." Alabama Law Review 52 (spring): 859–910.

Goodhart, Arthur L. 2000. Five Jewish Lawyers of the Common Law. Union, N.J.: Lawbook Exchange.

Schroeder, Mary Murphy. 2000. "The Brandeis Legacy." San Diego Law Review 37 (summer): 711–23.

Strum, Philippa S. 1999. "The Unlikely Radical: After a Violent Strike Shattered Louis Brandeis' Assumptions About the Legal System, He Transformed His Practice and Became the Country's Most Influential Public Interest Advocate." American Lawyer 21 (December): 42.

cross-references

Antitrust Law; "Brief for the Defendant in Error, Muller v. Oregon" (Appendix, Primary Document); Electronic Surveillance; Olmstead v. United States; Privacy; Wiretapping.

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). □

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

Brandeis, Louis Dembitz (b. 13 Nov. 1856, d. 5 Oct. 1941). US Supreme Court Justice 1916–38 Born in Louisville (Kentucky), he was a brilliant law student, holding the highest academic average in the history of Harvard when he graduated there in 1878. An advisor to President Wilson, he became the first Jewish Supreme Court Justice. Brandeis brought a Progressive rationalism to the Supreme Court which is memorialized in the phrase ‘Brandeis brief’, used to describe a submission to court containing economic, statistical, and sociological arguments. He had a strong populist and anti-corporate bent, while being a fervent advocate of the law's duty to enforce civil liberties.