Brandeis, Louis D. (1856–1941)

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BRANDEIS, LOUIS D. (1856–1941)

The appointment of Louis D. Brandeis to the United States Supreme Court was not merely the crowning glory of an extraordinary career as a practicing lawyer and social activist. It was also the inauguration of an equally extraordinary career on the bench. In twenty-three years as a Justice, Brandeis acquired a stature and influence that few—before or since—could match. In part, this achievement reflected the fact that he was already a public figure when he ascended to the Court. But his skills as a jurist provided the principal explanation. He mastered details of procedure, remained diligent in researching the facts and law of the case, and, whatever the subject, devoted untold hours to make his opinions clear and logical. Perhaps the highest compliment came from colleagues who disagreed with his conclusions. "My, how I detest that man's ideas," Associate Justice george sutherland once observed. "But he is one of the greatest technical lawyers I have ever known."

Brandeis's opinions and votes on the Court were very much a product of his environment and experience. Born in Louisville, Kentucky, shortly before the civil war, he grew up in a family that provided him with love and security. That background probably helped him in establishing skills as a tenacious lawyer in Boston, where he opened his office one year after graduating from Harvard Law School first in his class. Brandeis attained local and then national fame when he used his formidable talents to effect reform at the height of the Progressive movement in the early 1900s. He fought the establishment of a privately owned subway monopoly in Boston, was instrumental in developing a savings bank life insurance system to prevent exploitation of industrial workers by large insurance companies, developed the famed brandeis brief—a detailed compilation of facts and statistics—in defense of Oregon's maximum hour law for women, and even took on the legendary J. P. Morgan when the corporate magnate tried to monopolize New England's rail and steamship lines. Brandeis's renown as "the people's attorney" spread across the country when, in 1910, he led a team of lawyers in challenging Richard A. Ballinger's stewardship of the nation's natural resources as secretary of the interior in the administration of President william howard taft.

Because of Brandeis's well-known credentials as a lawyer who had single-handedly taken on the "trusts," woodrow wilson turned to him for advice in the presidential campaign of 1912. The relationship ripened, and after his election to the White House Wilson repeatedly called upon Brandeis for help in solving many difficult problems. Through these interactions Wilson came to appreciate Brandeis's keen intelligence and dedication to the public welfare. In January 1916 he nominated the Boston attorney to the Supreme Court. Brandeis was confirmed by the United States Senate almost six months later after a grueling and bitter fight.

For Brandeis, law was essentially a mechanism to shape man's social, economic, and political relations. In fulfilling that function, he believed, the law had to account for two basic principles: first, that the individual was the key force in society, and second, that individuals—no matter what their talents and aspirations—had only limited capabilities. As he explained to harold laski, "Progress must proceed from the aggregate of the performances of individual men" and society should adjust its institutions "to the wee size of man and thus render possible his growth and development." At the same time, Brandeis did not want people coddled because of inherent limitations. Quite the contrary. People had to stretch themselves to fulfill their individual potentials.

In this context Brandeis abhorred what he often called "the curse of bigness." People, he felt, could not fully develop themselves if they did not have control of their lives. Individual control, however, was virtually impossible in a large institutional setting—whether it be a union, a corporation, the government, or even a town. From this perspective, Brandeis remained convinced that democracy could be maintained only if citizens—and especially the most talented—returned to small communities in the hinterland and learned to manage their own affairs.

This commitment to individual development led Brandeis to assume a leadership position in the Zionist Movement in 1914 and retain it after he went on the Court. In Palestine, Brandeis believed, an individual could control his life in a way that would not be possible in the United States.

This theme—the need for individuals and local communities to control their own affairs—also threads the vast majority of Brandeis's major opinions on the Court. Some of the most controversial of Brandeis's early opinions concerned labor unions. Long before his appointment to the Court he had viewed unions as a necessary element in the nation's economy. Without them large corporations would be able to exploit workers and prevent them from acquiring the financial independence needed for individual control. Brandeis made his views known on this matter in hitchman coal & coke company v. mitchell (1917). That case concerned the United Mine Workers' efforts to unionize the workers in West Virginia. As a condition of employment the mine owner forced his employees to sign a pledge not to join a union. A majority of the Court held that UMW officials had acted illegally in trying to induce the workers to violate that pledge.

Brandeis dissented. He could not accept the majority's conclusion that a union agreement would deprive the workers and mine owner of their due process rights under the fourteenth amendment to freedom of contract."Every agreement curtails the liberty of those who enter into it," Brandeis responded. "The test of legality is not whether an agreement curtails liberty, but whether the parties have agreed upon some thing which the law prohibits.…" Brandeis also saw no merit in the majority's concern with the UMW's pressure on workers to join the union. The plaintiff company's lawsuit was premised "upon agreements secured under similar pressure of economic necessity or disadvantage," he observed. "If it is coercion to threaten to strike unless plaintiff consents to a closed union shop, it is coercion also to threaten not to give one employment unless the applicant will consent to a closed non-union shop."

Brandeis adhered to these views in other labor cases that came before the Court. Eventually, the Court came around to Brandeis's belief that unions had a right to engage in peaceful efforts to push for a closed shop. Brandeis himself added a finishing touch in an opinion he delivered in Senn v. Tile Layers Union (1937), where he upheld a state law restricting the use of injunctions against picketing.

While concern for the plight of labor was vital to his vision of society, nothing concerned Brandeis more than the right of a state or community to shape its own environment. For this reason he voted to uphold almost every piece of social legislation that came before the Court. Indeed, he wanted to reduce federal jurisdiction in part because, as he told felix frankfurter, "in no case practically should the appellate federal courts have to pass on the construction of state statutes." Therefore, if the state wanted to regulate the practices of employment agencies, expand the disability protection to stevedores who worked the docks, or take other social actions, he would not stand in the way. As he explained for the Court in O'Gorman & Young v. Hartford Insurance Company (1931), "the presumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing the statute." This meant that the Court must abide by the legislature's judgment even if the Court found the law to be of doubtful utility.

Only a few months after O'Gorman Brandeis applied this principle in new state ice company v. liebmann (1932). The Oklahoma Legislature had passed a law that prohibited anyone from entering the ice business without first getting a certificate from a state corporation commission showing that there was a public need for the new business. A majority of the Court struck the law down because the ice business was not so affected with a public interest to justify a measure that would, in effect, restrict competition.

Brandeis was all for competition. He had long believed that large corporations were dangerous because they often eliminated competition and with it the right of individuals to control their lives, a proposition he examined in detail in Liggett Company v. Lee (1933). Whatever misgivings he had about the merits of the Oklahoma law, Brandeis had no trouble accepting the state's right to make its own decisions, especially at a time when the nation was grappling with the problems of the Depression. "It is one of the happy incidents of the federal system," he wrote in dissent, "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.… But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles."

The Tennessee case was an exception to Brandeis's general inclination to protect the states' right to legislate. In fact, he was so devoted to states' rights that he once openly disregarded one of his most-oft stated juridical principles—never decide constitutional matters that can be avoided. Brandeis relied on this principle when he refused to join the Court's opinion in ashwander v. tennessee valley authority (1936) upholding the constitutionality of federal legislation establishing the TVA. In a concurring opinion he argued that they should have dismissed the case without deciding the constitutional issue because the plaintiffs had no standing to bring the lawsuit.

Brandeis was willing to ignore the teachings of his TVA opinion, however, when Chief Justice charles evans hughes asked the aging Justice to write the Court's opinion in erie railroad v. tompkins (1938). The Court had voted to overrule swift v. tyson (1842), a decision that concerned cases arising under diversity jurisdiction. Specifically, Swift allowed federal courts to ignore the laws of the states in which they were located and instead to apply federal common law. Swift thus enabled litigants in certain cases to shop for the best forum in filing a lawsuit, for a federal court under Swift could and often did follow substantive law different from that applied by local courts.

Brandeis had long found Swift offensive. Not only did it mean that different courts in the same state could come to different conclusions on the same question; of greater importance, Swift undermined the ability of the state to control its own affairs. He was no doubt delighted when Hughes gave him the chance to bury Swift; and he wanted to make sure there could be no resurrection by a later Court or Congress. He therefore wrote an opinion holding that Swift violated the Constitution because it allowed federal courts to assume powers reserved to the states. The constitutional basis for the opinion was startling for two reasons: first, Brandeis could have just as easily overturned Swift through a revised construction of the judiciary act of 1789; and second, none of the parties had even raised the constitutional issue, let alone briefed it.

Brandeis would depart from his ready endorsement of state legislation if the law violated fundamental freedoms and individual rights. It was not only a matter of constitutional construction. The bill of rights played a significant role in the individual's, and ultimately the community's, right to control the future. Brandeis knew, for example, that, without first amendment protections, he never could have achieved much success as "the people's attorney" in battling vested interests. In those earlier times he had sloughed off personal attacks of the bitterest kind to pursue his goals. He knew that, in many instances, he would have been silenced if his right of speech had depended on majority approval. And he expressed great concern when citizens were punished—even during wartime—for saying or writing things someone found objectionable. "The constitutional right of free speech has been declared to be the same in peace and in war," he wrote in dissent in Schaeffer v. United States (1920). "In peace, too, men may differ widely as to what loyalty to our country demands; and an intolerant majority, swayed by passion or fear, may be prone in the future, as it has often been in the past, to stamp as disloyal opinions with which it disagrees." This point was later amplified in his concurring opinion in whitney v. california (1927). The Founding Fathers, Brandeis wrote, recognized "that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones."

Brandeis, then, often brought clear and deepseated convictions to the conference table. He was not one, however, to twist arms and engage in the lobbying that other Justices found so successful. "I could have had my views prevail in cases of public importance if I had been willing to play politics," he once told Frankfurter. "But I made up my mind I wouldn't—I would have had to sin against my light, and I would have hated myself. And I decided that the price was too large for the doubtful gain to the country's welfare."

Brandeis therefore tried to use established procedures to persuade his colleagues. To that end he would often anticipate important cases and distribute his views as a "memorandum" even before the majority opinion was written. In olmstead v. united states (1928), for example, he tried to convince the Court that the federal government should not be allowed to use evidence in a criminal case that its agents had obtained by wiretapping. The eavesdropping had been done without a judicial warrant and in violation of a state statute. Brandeis circulated a memorandum reflecting views that had not been debated at conference. The government should not be able to profit by its own wrongdoing, he said—especially when, as here, it impinged on the individual's right to privacy (a right he had examined as a lawyer in a seminal article in the Harvard Law Review). The memorandum could not command a majority, and Brandeis later issued an eloquent dissent that focused on the contention that warrantless wiretaps violated the fourth amendment's protection against unreasonable searches and seizures.

At other times Brandeis would use the Saturday conferences to urge a view upon his colleagues. On one occasion—involving Southwestern Bell Telephone Company v. Public Service Commission (1923)—an entire day was devoted to a seminar conducted by Brandeis to explain why a utility's rate of return should be based on prudent investment and not on the reproduction cost of its facilities. Few, if any, Justices shared Brandeis's grasp of rate-making principles. Hence, it took more than two decades of experience and debate before the Court—without Brandeis—accepted the validity of his position.

Brandeis took his losses philosophically. He knew that progress in a democracy comes slowly, and he was prepared to accept temporary setbacks along the way. But he rarely faded in his determination to correct the result. If his brethren remained impervious to his reasoning, he was willing to use other resources. He peppered Frankfurter and others with suggestions on articles for the Harvard Law Review. He also turned to the numerous congressmen and senators who frequently dined with him. Were they interested in introducing legislation to restrict federal jurisdiction or some other objective? If the answer was affirmative, Brandeis often volunteered the services of Frankfurter (whose expenses in public interest matters were generally assumed by Brandeis).

Few of these extrajudicial activities produced concrete results. Brandeis was apparently pleased, consequently, when Hughes became Chief Justice in 1930. Brandeis felt that the former secretary of state had a better command of the law than did Taft, the preceding Chief Justice, and would be able to use that knowledge to expedite the disposition of the Court's growing caseload. Of greater significance, Hughes and some other new members of the Court had views that closely coincided with Brandeis's. In fact, in 1937, benjamin n. cardozo, harlan fiske stone, and Brandeis—the so-called liberal Justices—began to caucus in Brandeis's apartment on Friday nights to go over the cases for the Saturday conference.

With this kind of working relationship, plus the change in the times, Brandeis was able to join a majority in upholding New Deal legislation (he voted against only three New Deal measures). He also lived to see many of his earlier dissents become holdings of the Court, particularly in cases concerning labor and the right of states to adopt social legislation. After his death, many other dissents—including his First Amendment views and his contention that warrantless wiretaps were unconstitutional—would also become the law of the land. But Brandeis's overriding ambition—the desire to establish a legal framework in which individuals and communities could control their affairs—was frustrated by developments that would not yield to even the most incisive judicial opinion. Unions, like corporations and even government, continued to grow like Topsy. Almost everyone, it seemed, became dependent on a large organization. Brandeis, a shrewd realist, surely recognized the inexorable social, economic, and political forces that impeded the realization of his dreams for America. None of that, however, would have deterred him from pursuing his goals. As he once explained to his brother, the "future has many good things in store for those who can wait, … have patience and exercise good judgment."

Lewis J. Paper


Bickel, Alexander M. 1957 The Unpublished Opinions of Mr. Justice Brandeis: The Supreme Court at Work. Cambridge, Mass.: Harvard University Press.

Frankfurter, Felix, ed. 1932 Mr. Justice Brandeis. New Haven, Conn.: Yale University Press.

Freund, Paul 1964 Mr. Justice Brandeis. In Allison Dunham and Philip B. Kurland, eds., Mr. Justice. Chicago: University of Chicago Press.

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

Mason, Alpheus T. 1946 Brandeis: A Free Man's Life. New York: Viking Press.

Paper, Lewis J. 1983 Brandeis. Englewood Cliffs, N.J.: Prentice-Hall.

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Brandeis, Louis D. (1856–1941)

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