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|Brandeis in c. 1916|
|Associate Justice of the United States Supreme Court|
June 1, 1916 – February 13, 1939
|Nominated by||Woodrow Wilson|
|Preceded by||Joseph Rucker Lamar|
|Succeeded by||William O. Douglas|
|Born||Louis David Brandeis|
November 13, 1856
|Died||October 5, 1941 (aged 84)|
|Spouse(s)||Alice Goldmark (m. 1891)|
|Alma mater||Harvard Law School|
|Brandeis in c. 1916|
|Associate Justice of the United States Supreme Court|
June 1, 1916 – February 13, 1939
|Nominated by||Woodrow Wilson|
|Preceded by||Joseph Rucker Lamar|
|Succeeded by||William O. Douglas|
|Born||Louis David Brandeis|
November 13, 1856
|Died||October 5, 1941 (aged 84)|
|Spouse(s)||Alice Goldmark (m. 1891)|
|Alma mater||Harvard Law School|
He was born in Louisville, Kentucky, to Jewish immigrant parents from Bohemia, who raised him in a secular home. He attended Harvard Law School, graduating at the age of twenty with the highest grade average in the law school's history.
Brandeis settled in Boston, where he founded a law firm (that is still in practice today as Nutter McClennen & Fish) and became a recognized lawyer through his work on progressive social causes. Starting in 1890, he helped develop the "right to privacy" concept by writing a Harvard Law Review article of that title, and was thereby credited by legal scholar Roscoe Pound as having accomplished "nothing less than adding a chapter to our law". He later published a book titled Other People's Money And How the Bankers Use It, suggesting ways of curbing the power of large banks and money trusts, which partly explains why he later fought against powerful corporations, monopolies, public corruption, and mass consumerism, all of which he felt were detrimental to American values and culture. He also became active in the Zionist movement, seeing it as a solution to antisemitism in Europe and Russia, while at the same time being a way to "revive the Jewish spirit."
When his family’s finances became secure, he began devoting most of his time to public causes and was later dubbed the “People’s Lawyer.” He insisted on serving on cases without pay so that he would be free to address the wider issues involved. The Economist magazine calls him "A Robin Hood of the law." Among his notable early cases were actions fighting railroad monopolies; defending workplace and labor laws; helping create the Federal Reserve System; and presenting ideas for the new Federal Trade Commission (FTC). He achieved recognition by submitting a case brief, later called the "Brandeis Brief," which relied on expert testimony from people in other professions to support his case, thereby setting a new precedent in evidence presentation.
In 1916, President Woodrow Wilson nominated Brandeis to become a member of the Supreme Court. However, his nomination was bitterly contested, partly because, as Justice William O. Douglas wrote, "Brandeis was a militant crusader for social justice whoever his opponent might be. He was dangerous not only because of his brilliance, his arithmetic, his courage. He was dangerous because he was incorruptible. . . [and] the fears of the Establishment were greater because Brandeis was the first Jew to be named to the Court." He was eventually confirmed by the Senate by a vote of 47 to 22 on June 1, 1916,—21 Republican Senators and one Democratic Senator (Francis G. Newlands of Nevada) voted against his nomination—and became one of the most famous and influential figures ever to serve on the high court. His opinions were, according to legal scholars, some of the "greatest defenses" of freedom of speech and the right to privacy ever written by a member of the Supreme Court.
Louis Dembitz Brandeis was born on November 13, 1856, in Louisville, Kentucky, the youngest of four children. His parents, Adolph Brandeis and Frederika Dembitz, both of whom were Jewish, emigrated to the United States from their childhood homes in Prague, Bohemia (then part of the Austrian Empire). They emigrated as part of their extended families for both economic and political reasons. The Revolutions of 1848 had produced a series of political upheavals and the families, though "liberal in their political views and sympathetic to the rebel cause," were "shocked by the anti-Semitic riots that erupted in Prague while the city was in the hands of the Czech rebels.":55 In addition, the Habsburg Empire had imposed business taxes on Jews. Family elders sent Adolph Brandeis to America to observe and prepare for his family's possible emigration. He spent a few months in the Midwest and was impressed by the nation's institutions and by the tolerance among the people he met. He wrote home to his wife, "America's progress is the triumph of the rights of man.":56
The Brandeis family chose to settle in Louisville partly because it was a prosperous river port. His earliest childhood was shaped by the American Civil War, which forced the family to seek safety temporarily in Indiana. The Brandeis family held abolitionist beliefs that angered their Louisville neighbors.:57 Louis's father developed a grain-merchandising business. Worries about the U.S. economy took the family to Europe in 1872, but they returned in 1875.:121
The Brandeises were considered a "cultured family," trying not to discuss business or money during dinner, preferring subjects related to history, politics, and culture, or their daily experiences. Having been raised partly on German culture, Louis read and appreciated the writings of Goethe and Schiller, and his favorite composers were Beethoven and Schumann.
In their religious beliefs, although his family was Jewish, only his extended family practiced a more conservative form of Judaism, while his parents practiced a more relaxed form. They celebrated the main Christian holidays along with most of their community, even treating Christmas as a secular holiday. His parents raised their children to be "high-minded idealists" rather than depending solely on religion for their purpose and inspiration. In later years, his mother, Frederika, wrote of this period:
According to biographer Melvin Urofsky, Brandeis was influenced greatly by his uncle Lewis Naphtali Dembitz. Unlike other members of the extended Brandeis family, Dembitz regularly practiced Judaism and was actively involved in Zionist activities. Brandeis later changed his middle name from David to Dembitz in honor of his uncle and, through his uncle's model of social activism, became an active member of the Zionist movement later in his life.:18
Louis grew up in "a family enamored with books, music, and politics, perhaps best typified by his revered uncle, Lewis Dembitz, a refined, educated man who served as a delegate to the Republican convention in 1860 that nominated Abraham Lincoln for president."
In school, Louis was a serious student in languages and other basic courses and usually achieved top scores. Brandeis graduated from the Louisville Male High School at age 14 with the highest honors. When he was sixteen, the Louisville University of the Public Schools awarded him a gold medal for "excellence in all his studies.":10 Anticipating an economic downturn, Adolph Brandeis relocated the family to Europe in 1872. After a period spent traveling, Louis spent two years studying at the Annen-Realschule in Dresden, Saxony, where he excelled. He later credited his capacity for critical thinking and his desire to study law in the United States to his time there.
Returning to the U.S. in 1875, Brandeis entered Harvard Law School at the age of eighteen. It was his admiration for the wide learning and debating skills of his uncle, Lewis Dembitz, that inspired him to study law.:58 Despite the fact that he entered the school without any financial help from his family, he became "an extraordinary student".
During his time at Harvard, the teaching of law was undergoing a change of method from the traditional, memorization-reliant, "black letter" case law, to a more flexible and interactive Socratic method, using prior cases as the basis for discussion to instruct students in legal reasoning. Brandeis easily adapted to the new methods, soon became active in class discussions, and joined the Pow-Wow club, similar to today's moot courts in law school, which gave him experience in the role of a judge.:122
In a letter while at Harvard, he wrote of his "desperate longing for more law" and of the "almost ridiculous pleasure which the discovery or invention of a legal theory gives me." He referred to the law as his "mistress," holding a grip on him that he could not break.
Unfortunately, his eyesight began failing as a result of the large volume of required reading and the poor visibility under gaslights. The school doctors suggested he give up school entirely. However, he found another alternative: paying fellow law students to read the textbooks aloud, while he tried to memorize the legal principles. Despite the difficulties, his academic work and memorization talents were so impressive that he graduated as valedictorian and achieved the highest grade point average in the history of the school,:122 a record that stood for eight decades. Brandeis wrote of that period: "Those years were among the happiest of my life. I worked! For me, the world's center was Cambridge.":47
After graduation, he stayed on at Harvard for another year, where he continued to study law on his own while also earning a small income by tutoring other law students. In 1878, he was admitted to the Missouri bar and accepted a job with a law firm in St. Louis, where he filed his first brief and published his first law review article. However, after seven months, he tired of the minor casework and accepted an offer by his Harvard classmate, Samuel Warren, to set up a law firm in Boston. They were close friends at Harvard where Warren ranked second in the class to Brandeis's first. Warren was also the son of a wealthy Boston family and their new firm was able to benefit from his family's connections.:59
Soon after returning to Boston, while waiting for the law firm to gain clients, he was appointed law clerk to Horace Gray, the chief justice of the Massachusetts Supreme Court, where he worked for two years. He was admitted to the Massachusetts bar without taking an examination, which he later wrote to his brother, was "contrary to all principle and precedent." According to Klebanow and Jonas, "the speed with which he was admitted probably was due to his high standing with his former professors at Harvard Law as well as to the influence of Chief Justice Gray.":59
The new firm was eventually successful, having gained new clients from within the state and in several neighboring states as well. Their "former professors referred a number of clients to the two fledgling lawyers," garnering Brandeis more financial security and eventually the freedom to take an active role in progressive causes.
As partner in his law firm, he worked as a consultant and advisor to businesses, but also as a litigator "who reveled in the challenge of the courtroom." In a letter to his brother, he writes, "There is a certain joy in the exhaustion and backache of a long trial which shorter skirmishes cannot afford." On November 6, 1889, he pleaded for the first time before the U.S. Supreme Court as the Eastern counsel of the Wisconsin Central Railroad and won. Not long after that, Chief Justice Melville Fuller recommended him to a friend as the best attorney he knew of in the Eastern U.S.
Before taking on business clients, he insisted they agree to two major conditions: "first, that he would never have to deal with intermediaries, but only with the person in charge...[and] second, that he must be permitted to offer advice on any and all aspects of the firm's affairs" that seemed relevant. He saw himself as a "counselor at law," rather than simply a strategist in lawsuits. He preferred helping clients avoid such events as lawsuits, strikes, or other crises, by giving early advice. Brandeis explained: "I would rather have clients than be somebody's lawyer.":86 In a note found among his papers, he reminded himself to "advise client on what he should have, not what he wants.":20
Brandeis describes how he saw himself as an advisor:
Brandeis was "unusual among lawyers" because he consistently turned away cases he considered bad. If he believed a client to be in the wrong, "either he would persuade his clients to make amends ... or he would withdraw from the case." Once, uncertain as to the rightness of his client's case, he wrote the client, "The position that I should take if I remained in the case would be to give everybody a square deal.":233
Brandeis's and Warren's firm has been in continuous practice in Boston since its founding in 1879; today the firm is known as Nutter McClennen & Fish.
Brandeis defined modern notions of the individual right to privacy in a path-breaking article he published with his partner, Warren, in the Harvard Law Review of Dec. 15, 1890, on "The Right to Privacy." Stimulated by anger at offensive publicity concerning the social activities of Warren's family, it adumbrated a new legal concept that has had lasting influence. Building on diverse analogies in the law of defamation, of literary property, and of eavesdropping, Brandeis argued that the central, if unarticulated, interest protected in these fields was an interest in personal integrity, "the right to be let alone," that ought to be secured against invasion except for some compelling reason of public welfare. Brandeis saw emotions as a positive expression of human nature, and so desired privacy protection for them as protection against repression of the human spirit.
Between 1888 and 1890, Brandeis and his law partner, Samuel Warren, wrote three scholarly articles published in the Harvard Law Review. The third, "The Right to Privacy," was the most important, with legal scholar Roscoe Pound saying it accomplished "nothing less than adding a chapter to our law."
Brandeis and Warren discussed "snapshot photography," a recent innovation in journalism, that allowed newspapers to publish photographs and statements of individuals without obtaining their consent. They argued that private individuals were being continually injured and that the practice weakened the "moral standards of society as a whole.":61 They wrote:
Legal historian Wayne McIntosh wrote that "the privacy tort of Brandeis and Warren set the nation on a legal trajectory of such profound magnitude that it finally transcended its humble beginnings.":24 State courts and legislatures quickly drew on Brandeis and Warren's work. In 1905 the Georgia Supreme Court recognized a right to privacy in a case involving photographs. By 1909, California, New York, Pennsylvania, Virginia, and Utah had passed statutes establishing the right. In 1939 the American Law Institute's Restatement of Torts also recognized a right to privacy at common law. Years later, after becoming a justice on the Supreme Court, Brandeis discussed the right to privacy in his famous dissent in Olmstead v. United States.
Brandeis became engaged to Alice Goldmark, of New York, in 1890. He was then thirty-four years of age and had previously found little time for courtship. Alice was the daughter of Joseph Goldmark, a physician, the brother of the composer Karl Goldmark, who had emigrated to America from Austria-Hungary after the collapse of the Revolution of 1848. They were married on March 23, 1891, at the home of her parents in New York City in a civil ceremony. The newlywed couple moved into a modest home in Boston's Beacon Hill district and had two daughters, Susan, born in 1893 and Elizabeth, born in 1896.:72–78
Alice supported her husband's resolve to devote most of his time to public causes. The Brandeis family "lived well but without extravagance.":63 With the continuing success of his law practice, they later purchased a vacation house in Dedham, where they would spend many of their weekends and summer vacations. Unexpectedly, his wife's health soon became frail, and so in addition to his professional duties he found it necessary to manage the family's domestic affairs.
Using his social conscience, Brandeis became a leader of the Progressive movement, and used the law as the instrument for social change. From 1897 to 1916, he was in the thick of multiple reform crusades. He fought in Boston to secure honest traction franchises and in 1907 launched a six-year fight to prevent banker J. P. Morgan from monopolizing New England's railroads. After an exposé of insurance fraud in 1906, he devised the Massachusetts plan to protect small wage-earners through savings bank life insurance. He supported the conservation movement and in 1910 emerged as the chief figure in the Pinchot-Ballinger investigation.
In 1889, Brandeis entered a new phase in his legal career when his partner, Samuel Warren, withdrew from their partnership to take over his recently deceased father's paper company. He then took on cases with the help of colleagues, two of whom became partners in his new firm, Brandeis, Dunbar, and Nutter, in 1897.:82–86
He won his first important victory in 1891, when he persuaded the Massachusetts legislature "to make the liquor laws less restrictive and...in his view, more reasonable and enforceable." In arguing his case, he managed "to devise a viable middle course." By "moderating" the existing regulations, he told the lawmakers that "they would, at a single stroke, deprive the liquor dealers of their incentive to violate the laws and to corrupt through bribery the politics of Massachusetts.":34–37 The legislature was won over by his arguments and changed the regulations.
Brandeis wrote that "the law has everywhere a tendency to lag behind the facts of life." Therefore he planned, according to historian Steven Piott, to "chip away at the assumption that the principles of law should be unchanging" and "break the traditional hold on legal thinking and work to harmonize the law with the needs of the community."
Part of his reasoning and philosophy for acting as a public advocate he later explained in his 1911 book, The Opportunity in the Law:
In one of his first such cases, in 1894, he represented Alice N. Lincoln, a Boston philanthropist and noted crusader for the poor. He appeared at public hearings to promote investigations into conditions in the public poor-houses. Lincoln, who had visited these poor-houses for years, "charged that the inmates were dwelling in misery and that the temporarily unemployed were being thrown in together callously with the mentally ill and hardened criminals." Brandeis spent nine months and held fifty-seven public hearings, at one such hearing proclaiming, "Men are not bad. Men are degraded largely by circumstances....It is the duty of every man...to help them up and let them feel that there is some hope for them in life." As a result of the hearings, the board of aldermen decreed that the administration of the poor law would be completely reorganized.:52–54
In 1896, he was asked to lead the fight against a Boston transit company which was trying to gain concessions from the state legislature that would have given it a "stranglehold on the city's emerging subway system." Brandeis prevailed and the legislature enacted his bill.:57–61
However, the transit franchise struggle revealed that many of Boston's politicians had placed "friends" and "ward heelers" on the payrolls of the private transit companies. Lief writes that "One alderman alone had found work in this way for 200 of his followers. . . . [and] in Boston, as in other American cities, such abuses were part of a larger pattern of corruption in which graft and bribery were commonplace. Convicted felons would return from prison terms to resume their political careers.".:70 "Always the moralist," writes biographer Thomas Mason, "Brandeis declared that 'misgovernment in Boston had reached the danger point.'" He announced that from then on he would keep a ledger of "good and bad deeds," making a record of Boston's politicians accessible to all the city's voters. In one of his public addresses in 1903, he stated his goal::121
In 1906, Brandeis won a modest victory when the state legislature enacted a measure he drafted designed to make it a punishable crime for a public official to solicit a job from a regulated public utility or for an officer of such a company to offer such favors.:121
He summed up his anti-corruption philosophy in his closing argument for the Glavis-Ballinger case of 1910, describing his vision of the public servant::251
During the 1890s Brandeis began to question his views on the "industrial order in America," write Klebanow and Jonas. Becoming more aware that there was a growing number of "giant firms" which were capable of dominating whole industries, he began to lose faith that the economic system was able to regulate them for the public's welfare. As a result, he began denouncing "cut-throat competition" and fretted over the dangers of monopoly. "He became more aware of the plight of workers and more sympathetic to the labor movement." His earlier legal battles had convinced him, according to Piott, "that concentrated economic power could have a negative effect on a free society.":139
However, he also recognized the limits of trying to split up some monopolies. In an address in 1912, he said:
As Klebanow and Jonas make clear, Brandeis was becoming increasingly conscious of and hostile to powerful corporations and the trend toward bigness in American industry and finance. He argued bigness conflicted with efficiency and added a new dimension to the Efficiency Movement of the Progressive Era. As early as 1895 he had pointed out the harm that giant corporations could do to competitors, customers, and their own workers. The growth of industrialization was creating mammoth companies which he felt threatened the well-being of millions of Americans.:76 Although the Sherman Anti-Trust Act was enacted in 1890, it was not until the 20th century that there was any major effort to apply it.
In fact, by 1910 Brandeis noticed that even America's leadership, including President Theodore Roosevelt, were beginning to question the value of antitrust policies. Business experts were contending that "there was nothing that could prevent the continuing concentration of industry and therefore, like it or not, big business was here to stay.":76 As a result, leaders like Roosevelt saw the need to "regulate," but not limit, the growth and operation of corporate monopolies, whereas Brandeis felt the trend to bigness should be slowed, if not reversed. His experience convinced him that monopolies and trusts were "neither inevitable nor desirable." In support of Brandeis's position were presidential candidate William Jennings Bryan and Robert M. LaFollette, senator from Wisconsin.
Brandeis furthermore denied that large trusts were more efficient than the smaller firms which were generally driven out of business. He argued the opposite was often true, that monopolistic enterprises became "less innovative" because, he wrote, their "secure positions freed them from the necessity which has always been the mother of invention." To him there was no way an executive could learn all the details of running a huge and unwieldy company. "There is a limit to what one man can do well," he wrote. Brandeis was naturally aware of the economies of scale and initially lower prices offered by growing companies, but he emphasized the future by claiming that once a trust drove out its competition, "the quality of its products tended to decline while the prices charged for them tended to go up." Eventually, he felt, the trusts would be like "clumsy dinosaurs, which, if they ever had to face real competition, would collapse of their own weight." In an address to the Economic Club of New York in 1912, he said:
Among Brandeis's key themes was the conflict he saw between 19th-century values, with its culture of the small producer, and an emerging 20th-century age of big business and consumerist mass society. McCraw notes that Brandeis's "hostility to the new consumerism found vivid expression in his own behavior. Though himself a millionaire, he disliked most other wealthy persons, being profoundly disturbed by their ostentatious consumption." He never shopped for his own clothes, preferring to reorder the same suits that served him well, nor did he own a yacht like his friends, but was satisfied with his canoe.
As a result, he developed a hatred of advertising and a loss of respect for the average "manipulated" consumer. He recognized that a dependence by newspapers and magazines on advertising for their revenues caused them to be "less free" than they should be. And national advertisers further undermined the relationship between consumers and local businesses. He went so far, writes McCraw, as to "urge journalists to 'teach the public' such lessons as 'to look with suspicion upon every advertised article.'"
But in general, Brandeis felt that consumers were becoming "servile, self-indulgent, indolent, [and] ignorant." The consumer, he said, "had abrogated his role as a countervailing power against bigness... He lies not only supine, but paralyzed, and deserves to suffer like others who take their lickings 'lying down.'" He was repelled by the flaunting materialism overtaking America, often denouncing conspicuous consumption. But by doing so, notes McCraw, "he drifted imperceptibly into an attack on consumer preference, a principle that lies at the very core of a market economy.":107
Klebanow and Jonas write that Brandeis had begun to evolve into "the people's lawyer." He was no longer accepting payment for "public interest" cases even when they required pleadings before judges, legislative committees, or administrative agencies. He also became involved in developing public opinion through writing magazine articles, making speeches, or helping form interest groups. He "insisted on serving without pay so that he would be free to address the wider issues involved rather than confine himself merely to the case at hand.":66
In a 1905 address to law students and others at Harvard, he explained his philosophy:
In 1910, a New York Times article tried to explain how someone of the stature of Brandeis would suddenly decide to become a public advocate:
In March 1905, he became counsel to a New England policyholder's committee concerned that their scandal-ridden insurance company would file bankruptcy and the policyholders would lose their investments and insurance protection. He insisted on serving without pay in order to give himself the freedom to address the wider issues involved. He then spent the next year studying the workings of the life insurance industry, often writing articles and giving speeches about his findings, at one point describing their practices as "legalized robbery.":76–77 By 1906 he concluded that life insurance was "simply a bad bargain for the vast majority of policyholders" due mostly to the inefficiency of the industry. He also learned that the policies of "poorly paid breadwinners" were canceled when they missed a payment, due to little-understood clauses within the policy. As a result, he discovered that most policies lapsed, and only one out of eight original policyholders actually received benefits, leading to large insurance company profits.
He succeeded in "creating a groundswell" in Massachusetts with his personal campaign of educating the public, and created a new "savings bank life insurance" system with the help of progressive businessmen, social reformers, and trade unionists. By March 1907, the Savings Bank Insurance League had 70,000 members and his "face and name were appearing regularly in newspapers ...":164 He persuaded the former governor, a Republican, to become its president, and the current governor stated in his annual message his wish for the legislature to study plans for "cheaper insurance that may rob death of half of its terrors for the worthy poor." Brandeis drafted his own bill, and three months later the "savings bank insurance measure was signed into law." He always said this bill was one of "his greatest achievements" and, like a proud parent, he "kept a watchful eye on it." :177–180
While still involved with the life insurance industry, he took on another public interest case: the struggle to prevent New England's largest railroad company, New Haven Railroad, from gaining control of its chief competitor, the Boston and Maine Railroad. His foes were the most powerful he had ever encountered, including the region's most affluent families, Boston's legal establishment, and the large State Street bankers. Klebanow and Jonas add that "the New Haven had been under the control of J. P. Morgan, the most powerful of all American bankers and probably the most dominating figure in all of American business.":69
J. P. Morgan had "pursued a policy of expansion" by acquiring many of the line's competitors to make the New Haven into a single unified network. Acquisitions included "not only railways, but also trolley and shipping companies," writes historian John Weller.:41–52 In June 1907, Brandeis was asked by Boston and Maine stockholders to present their cause to the public, a case which he again took on by insisting on serving without payment, "leaving him free to act as he thought best."
After months of extensive research, he published a seventy-page booklet in which he argued that New Haven's acquisitions were putting its financial condition in jeopardy, and predicted that within a few years it would be forced to cut its dividends or become insolvent. He spoke in public warning Boston's citizens that the New Haven "sought to monopolize the transportation of New England and raising the prospect of alien control." For all of his "frank expressions of disapproval of railroad methods in this State", it was said of him that he could "be set down as a man without a muzzle." He quickly found himself "under attack" by not only the New Haven, but also by many newspapers, magazines, chambers of commerce, Boston bankers, and college professors.:69 "I have made," he wrote his brother, "more enemies than in all my previous fights together.":69
By 1908, however, the New Haven's proposed merger was "dealt several stunning blows." Among them, the Massachusetts Supreme Court ruled that New Haven had acted illegally during earlier acquisitions. Brandeis met twice with President Theodore Roosevelt, who convinced the U.S. Department of Justice to file suit against New Haven for antitrust violations. At a subsequent hearing in front of the Interstate Commerce Commission in Boston, New Haven's president "admitted that the railroad had maintained a floating slush fund that was used to make 'donations' to politicians who cooperated.":49–154
Within a few years, "Haven's finances came undone just as Brandeis had predicted they would." By the spring of 1913, the Department of Justice launched a new investigation, and the following year the Interstate Commerce Commission charged the New Haven with "extravagance and political corruption and its board of directors with dereliction of duty." As a result, the New Haven gave up its "struggle for expansion" by disposing of its Boston and Maine stock and selling off its recent acquisitions of competitors. As Mason describes it, "after a nine-year battle against a powerful corporation ... and in the face of a long, bitter campaign of personal abuse and vilification, Brandeis and his cause again prevailed.":203–214 A newspaper in 1914 describes Brandeis as someone "whose prophecies of disaster to the New Haven Railroad have been fully justified".
In 1934, during another confrontation with The House of Morgan, this one relating to securities regulation bills, J. P. Morgan's resident economist, Russell Leffingwell, reminded their banker, Tom Lamont, when he wrote, ". . . I think you underestimate the forces we are antagonizing. . . I believe that we are confronted with the profound politico-economic philosophy, matured in the wood for twenty years, of the finest brain and the most powerful personality in the Democratic party, who happens to be a Justice of the Supreme Court." Banking historian Ron Chernow writes that "For the House of Morgan, Louis Brandeis was more than just a critic, he was an adversary of almost mythical proportion.":379
In 1908 he chose to represent the state of Oregon in the case of Muller v. Oregon, to the U.S. Supreme Court. At issue was whether it was constitutional for a state law to limit the hours that female workers could work. Up until this time it was considered an "unreasonable infringement of freedom of contract" between employers and their employees for a state to set any wages or hours legislation.
Brandeis, however, discovered that earlier Supreme Court cases limited the rights of contract when the contract had "a real or substantial relation to public health or welfare." He therefore decided that the best way to present the case would be to demonstrate through an abundance of workplace facts, "a clear connection between the health and morals of female workers" and the hours that they were required to work. To accomplish this, he filed what has become known today as the "Brandeis Brief." Here, he presented a much shorter traditional brief, but included more than a hundred pages of documentation, including social worker reports, medical conclusions, factory inspector observations, and other expert testimonials, which together showed a preponderance of evidence that "when women worked long hours, it was destructive to their health and morals.":120–121
The strategy worked, and the Oregon law was upheld. Justice David Brewer directly credited Brandeis with demonstrating "a widespread belief that woman's physical structure and the functions that she performs ... justify special legislation." Thomas Mason writes that with the Supreme Court affirming Oregon's minimum wage law, Brandeis "became the leading defender in the courts of protective labor legislation" .:250–253  As Justice Douglas wrote years later, "Brandeis usually sided with the workers; he put their cause in noble words and the merits of their claims with shattering clarity."
Widely known as "the people's attorney," Brandeis pioneered pro bono work and was a true reformer. Brandeis was also the first to cite law reviews both in his briefs before the court and in his opinions as a justice. In 1907, he pioneered a new type of legal document, the "Brandeis brief." It included three pages of traditional legal citations and over one hundred innovative pages of citations to articles, government reports, and other references. It was packed full of social research and data to demonstrate the public interest in a ten-hour limitation on women's working hours. His brief proved decisive in Muller v. Oregon, which was the first Supreme Court ruling that accepted the legitimacy of a scientific examination of the social conditions in addition to the legal facts involved in a case.
One of the hallmarks of the case was Brandeis's minimizing common-law jurisprudence in favor of extralegal information relevant to the case. According to judicial historian Stephen Powers, the "so-called 'Brandeis Brief' became a model for progressive litigation," by taking into consideration social and historical realities rather than just the abstract general principles. He adds that it had "a profound impact on the future of the legal profession" by accepting more broad-based legal information. John Vile adds that this new "Brandeis Brief" was increasingly used, most notably in the Brown v. Board of Education case in 1954 that desegregated public schools.:123
Brandeis's positions on regulating large corporations and monopolies carried over into the presidential campaign of 1912. Democratic candidate Woodrow Wilson made it "the central issue," and, according to Wilson historian Arthur Link, "part of a larger debate over the future of the economic system and the role of the national government in American life." Whereas the Progressive Party candidate, Theodore Roosevelt felt that trusts were inevitable and should be regulated, Wilson and his party aimed to "destroy the trusts" by ending special privileges, such as protective tariffs and unfair business practices that made them possible.:1–24
On that basis, Brandeis, though "nominally a Republican," supported Wilson and urged his friends and associates to join him.:139 The two men met for the first time at a private conference in New Jersey that August and spent three hours discussing economic issues. Mason notes that Brandeis came away from the meeting a "confirmed admirer of Wilson, whom he described in letters to his friends as possessed of a remarkable mind and likely to make 'an ideal president.'" Wilson thereafter began using the term "regulated competition," the concept that Brandeis had developed, and made it the essence of his program. In September, Wilson asked Brandeis to "set forth explicitly the actual measures by which competition can be effectively regulated.":375–377
After his victory in the November election, Wilson wrote to Brandeis, "You were yourself a great part of the victory." Wilson considered nominating Brandeis first for Attorney General and later for Secretary of Commerce, but backed down after a loud outcry from corporate executives that he had once opposed in court battles. He concluded that Brandeis was too controversial a figure to appoint to his cabinet.:257–258
Nevertheless, during Wilson's first year as president, Brandeis "played a key role in shaping the Federal Reserve Act," according to banking historian Albert Link. He adds that "Brandeis's arguments were decisive in breaking the deadlock on the banking issue." Wilson endorsed the banking proposals of Brandeis and Secretary of State William Jennings Bryan, who, Piott points out, felt that "the banking system needed to be democratized and its currency issued and controlled by the government,":139 and convinced Congress to enact the Federal Reserve Act in December 1913.:28–31
In 1913, Brandeis wrote a series of articles for Harper's Weekly that suggested ways of curbing the power of large banks and money trusts. Then in 1914 he published a book entitled Other People's Money and How the Bankers Use It. He also urged the Wilson administration to develop proposals for new antitrust legislation to give the Department of Justice the power to enforce antitrust laws. McCraw writes that he was "one of the architects" of the Federal Trade Commission and served as Wilson's chief economic adviser from 1912 until 1916. "Above all else," he adds, "Brandeis exemplified the anti-bigness ethic without which there would have been no Sherman Act, no antitrust movement, and no Federal Trade Commission.":82
On January 29, 1916, Wilson "surprised the nation" by nominating Brandeis to become a member of the U.S. Supreme Court. However, his nomination was bitterly contested and denounced by conservative Republicans, including former president (and future Chief Justice) William Howard Taft, whose credibility was damaged by Brandeis in court battles and from his having at one point called Taft a "muckraker.":470 Further opposition came from members of the legal profession, including former Attorney General George W. Wickersham and former presidents of the American Bar Association, such as ex-Senator and Secretary of State Elihu Root of New York, who claimed Brandeis was "unfit" to serve on the Supreme Court.:470–475
The controversy surrounding Brandeis's nomination was so great that the Senate Judiciary Committee, for the first time in its history, held a public hearing on the nomination, allowing witnesses to appear before the committee and offer testimony both in support of and in opposition to Brandeis's confirmation. While previous nominees to the Supreme Court had been confirmed or rejected by a simple up-or-down vote on the Senate floor—often on the same day on which the President had sent the nomination to the Senate—a then-unprecedented four months lapsed between Wilson's nomination of Brandeis and the Senate's final confirmation vote.
"What Brandeis's opponents most objected to," write Klebanow and Jonas, "was his 'radicalism'." The Wall Street Journal wrote, "In all the anti-corporation agitation of the past, one name stands out ... where others were radical, he was rabid." And the New York Times also felt that having been a noted "reformer" for so many years, he would lack the "dispassionate temperament that is required of a judge.":73 Justice William O. Douglas, many years later, wrote that the nomination of Brandeis "frightened the Establishment" because he was "a militant crusader for social justice."
According to legal historian Scot Powe, much of the opposition to Brandeis' appointment also stemmed from "blatant anti-semitism." Taft would accuse Brandeis of using his Judaism to curry political favor, and Wickersham would refer to Brandeis' supporters (and Taft's critics) as "a bunch of Hebrew uplifters." Senator Henry Cabot Lodge privately complained that "If it were not that Brandeis is a Jew, and a German Jew, he would never have been appointed[.]"
However, those in favor of seeing him join the court were just as numerous and influential. Supporters included attorneys, social workers, and reformers with whom he had worked on cases, and "they testified eagerly in his behalf." Harvard law professor Roscoe Pound told the committee that "Brandeis was one of the great lawyers," and predicted, writes Todd, that he would one day rank "with the best who have sat upon the bench of the Supreme Court." Other lawyers who supported him pointed out to the committee that he "had angered some of his clients by his conscientious striving to be fair to both sides in a case." :208
In May, when the Senate Judiciary Committee asked the Attorney General to provide the letters of endorsement that traditionally accompanied a Supreme Court nomination, Attorney General Gregory found there were none. President Wilson had made the nomination on the basis of personal knowledge. In reply to the Committee, President Wilson wrote a letter to the Chairman, Senator Culberson, testifying to his own personal estimation of the nominee's character and abilities. He called his nominee's advice "singularly enlightening, singularly clear-sighted and judicial, and, above all, full of moral stimulation." He added:
A month later, on June 1, 1916, the Senate officially confirmed his nomination by a vote of 47 to 22. Forty-four Democratic Senators and three Republicans (La Follette, Norris, and Poindexter) voted in favor of confirming Brandeis. Twenty-one Republican Senators and one Democrat (Francis G. Newlands) voted against his confirmation.
There was a strong conservative streak in the U.S. beginning with World War I and into the 1920s, and this conservatism was reflected in decisions of the Supreme Court. However, both Brandeis and Justice Oliver Wendell Holmes Jr. often dissented and became known for consistently challenging the majority's view. (However, both men approved the restrictive Schenck v. United States decision in 1919 and the pro-sterilization Buck v. Bell decision in 1927). These dissents were most noteworthy in cases dealing with the free speech rights of defendants who had expressed opposition to the military draft. Justice Holmes developed the concept of "clear and present danger" as the test any restriction on speech had to meet. Both Holmes and Brandeis used this doctrine in other cases. Vile points out that Brandeis was "spurred by his appreciation for democracy, education, and the value of free speech and continued to argue vigorously for ... free speech even in wartime because of its educational value and the importance to democracy.":128 And according to legal historian John Raeburn Green, Brandeis's philosophy influenced Justice Holmes himself, and writes that "Justice Holmes' conversion to a profound attachment to freedom of expression ... may be taken to have occurred in 1919, and to have coincided roughly with the advent of Mr. Justice Brandeis's influence."
One such case was Gilbert v. Minnesota (1920) which dealt with a state law prohibiting interference with the military's enlistment efforts. In his dissenting opinion, Brandeis wrote that the statute affected the "rights, privileges, and immunities of one who is a citizen of the United States; and it deprives him of an important part of his liberty. ... [T]he statute invades the privacy and freedom of the home. Father and mother may not follow the promptings of religious belief, of conscience or of conviction, and teach son or daughter the doctrine of pacifism. If they do, any police officer may summarily arrest them."
Legal author Ken Gormley says Brandeis was "attempting to introduce a notion of privacy which was connected in some fashion to the Constitution...and which worked in tandem with the First Amendment to assure a freedom of speech within the four brick walls of the citizen's residence." In 1969, in Stanley v. Georgia, Justice Marshall succeeded in linking the right of privacy with freedom of speech and making it part of the constitutional structure, quoting from Brandeis's Olmstead dissent and his Whitney concurrence, and adding his own conclusions from the case at hand, which dealt with the issue of viewing pornography at home:
The case of Whitney v. California is notable partly because of the concurring opinion of both Justices Brandeis and Holmes. The case dealt with the prosecution of a woman for aiding the Communist Labor Party, an organization that was promoting the violent overthrow of the government. In their opinion and test to uphold the conviction, they expanded the definition of "clear and present danger" to include the condition that the "evil apprehended is so imminent that it may befall before there is opportunity for full discussion." According to legal historian Anthony Lewis, scholars have lauded Brandeis's opinion "as perhaps the greatest defense of freedom of speech ever written by a member of the high court.":85 In their concurring opinion, they wrote:
In his widely cited dissenting opinion in Olmstead v. United States (1928), Brandeis relied on thoughts he developed in his 1890 Harvard Law Review article "The Right to Privacy." But in his dissent, he now changed the focus whereby he urged making personal privacy matters more relevant to constitutional law, going so far as saying "the government [was] identified ... as a potential privacy invader." At issue in Olmstead was the use of wiretap technology to gather evidence. Referring to this "dirty business," he then tried to combine the notions of civil privacy and the "right to be let alone" with the right offered by the Fourth Amendment which disallowed unreasonable search and seizure. Brandeis wrote in his lengthy dissent:
In succeeding years his right of privacy concepts gained powerful disciples who relied on his dissenting opinion: Justice Frank Murphy, in 1942, used his Harvard Law Review article in writing an opinion for the Court; a few years later, Justice Felix Frankfurter referred to the Fourth Amendment as the "protection of the right to be let alone," as in the 1947 case of United States v. Harris, where his opinion wove together the speeches of James Otis, James Madison, John Adams, and Brandeis's Olmstead opinion, proclaiming the right of privacy as "second to none in the Bill of Rights:26
Again, five years later, Justice William O. Douglas openly declared that he had been wrong about his earlier tolerance of wiretapping and wrote, "I now more fully appreciate the vice of the practices spawned by Olmstead ... I now feel that I was wrong ... Mr. Justice Brandeis in his dissent in Olmstead espoused the cause of privacy – the right to be let alone. What he wrote is an historic statement of that point of view. I cannot improve on it.":445 And in 1963, Justice William J. Brennan, Jr. joined with these earlier opinions taking the position that "the Brandeis point of view" was well within the longstanding tradition of American law.:26
However, it took the growth of surveillance technology during the 1950s and 1960s and the "full force of the Warren Court's due process revolution," writes McIntosh, to finally overturn the Olmstead law: in 1967, Justice Potter Stewart wrote the opinion overturning Olmstead in Katz v. U.S. McIntosh adds, "A quarter-century after his death, another component of Justice Brandeis's privacy design was enshrined in American law."
As Wayne McIntosh notes, "the spirit, if not the person, of Louis Brandeis, has continued to stimulate the constitutional mutation of a 'right to privacy.'" These influences have manifested themselves in major decisions relating to everything from abortion rights to the "right to die" controversies. Cases dealing with a state ban on the dissemination of birth control information expanded on Brandeis by including an individual's "body," not just her "personality," as part of her right to privacy. In another case, Justice Harlan credited Brandeis when he wrote, "The entire fabric of the Constitution ... guarantees that the rights to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected." And the landmark case of Roe v. Wade, one of the most controversial and politically significant cases in U.S. Supreme Court history, the Court wrote, "This right of privacy ... is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
In Packer Corporation v. Utah (1932), Brandeis was to advance an exception to the right of free speech. In this case, a unanimous Court, led by Brandeis, found a clear distinction between advertising placed in newspapers and magazines with those placed on public billboards. The case was a notable exception and dealt with a conflict between widespread First Amendment rights with the public's right of privacy and advanced a theory of the "captive audience." Brandeis delivered the opinion of the Court to advance privacy interests:
According to John Vile, in the final years of his career, like the rest of the Court, he "initially combated the New Deal of Franklin D. Roosevelt, which went against everything Brandeis had ever preached in opposition to the concepts of 'bigness' and 'centralization' in the federal government and the need to return to the states.":129 In one case, Louisville v. Radford (1935), he spoke for a unanimous court when he declared the Frazier-Lemke Act unconstitutional. The act prevented mortgage-holding banks from foreclosing on their property for five years and forced struggling farmers to continue paying based on a court-ordered schedule. "The Fifth Amendment," he declared, "commands that however great the Nation's need, private property shall not be thus taken over without just compensation."
In Schechter Poultry Corp. v. United States (1935), the Court also voted unanimously to declare the National Industrial Recovery Act (NIRA) unconstitutional on the grounds that it gave the president "unfettered discretion" to make whatever laws he thought were needed for economic recovery. Economics author John Steele Gordon writes that the National Recovery Administration (NRA) was "the first iteration of Roosevelt's New Deal ... essentially a government-run cartel to fix prices and divide markets ... This was the most radical shift in the relation between government and the private economy in American history."  Speaking to aides of Roosevelt, Justice Louis Brandeis remarked that, “This is the end of this business of centralization, and I want you to go back and tell the president that we're not going to let this government centralize everything."
Brandeis also opposed Roosevelt's court-packing scheme of 1937, which proposed to add one additional justice to the Supreme Court for every sitting member who had reached the age of seventy without retiring. "This was," felt Brandeis and others on the Court, a "thinly veiled attempt to change the decisions of the Court by adding new members who were supporters of the New Deal," leading historian Nelson Dawson to conclude that "Brandeis . . . was not alone in thinking that Roosevelt's scheme threatened the integrity of the institution.":50–53
His last important judicial opinion was also one of the most significant of his career, according to Klebanow and Jonas. In Erie Railroad Co. v. Tompkins (1938), the Supreme Court addressed the issue of whether federal judges apply state law or federal "general law" where the parties to a lawsuit are from different states. Writing for the Court, Brandeis overruled the ninety-six-year-old doctrine of Swift v. Tyson (1842), and held that there was no such thing as a "federal general common law" in cases involving diversity jurisdiction. This concept became known as the Erie Doctrine. Applying the Erie Doctrine, federal courts now must conduct a choice of law analysis, which generally requires that the courts apply the law of the state where the injury or transaction occurred. "This ruling," concluded Klebanow and Jonas, "fits in well with Brandeis's goals of strengthening the states and reversing the long-term trend toward centralization and bigness."
Relatively late in life the secular Brandeis also became a prominent Zionist leader. He became active in the Federation of American Zionists in 1912, as a result of a conversation with Jacob de Haas, according to some. His involvement provided the nascent American Zionist movement one of the most distinguished men in American life and a friend of the next president. Over the next several years he devoted a great deal of his time, energy, and money to spreading the Zionist word. With the outbreak of World War I in Europe, the divided allegiance of its membership rendered the Zionist Organization impotent. American Jewry then assumed a larger responsibility independent of the Zionist Executive in Europe. The Provisional Executive Committee for Zionist Affairs was established in New York for this purpose on August 20, 1914, and Brandeis was elected president of the organization. As president from 1914 to 1918, Brandeis became the leader of American Zionism. He embarked on a speaking tour in the fall and winter of 1914–1915 to garner support for the Zionist cause, emphasizing the goal of self-determination and freedom for Jews through the development of a Jewish homeland.
Unlike the majority of American Jews at the time, he felt that the re-creation of a Jewish national homeland was one of the key solutions to antisemitism and the "Jewish problem" in Europe and Russia, while at the same time a way to "revive the Jewish spirit." He explained his belief in the importance of Zionism in a famous speech he gave at a conference of Reform Rabbis in April 1915:
He also explained his belief that Zionism and patriotism were compatible concepts and should not lead to charges of "dual loyalty" which worried the rabbis and the dominant American Jewish Committee:
Early in the war, Jewish leaders determined that they needed to elect a special representative body to attend the peace conference as spokesman for the religious, national and political rights of the Jews in certain European countries, especially to guarantee that Jewish minorities were included wherever minority rights were recognized. Under the leadership of Brandeis, Stephen Wise and Julian Mack, the Jewish Congress Organization Committee was established in March 1915. The subsequent vehement debate about the idea of a "congress" stirred American Jewry and acquainted it with the Jewish problem. Brandeis’ efforts to bring in the American Jewish Committee and some other Jewish organizations were unsuccessful; these organizations were quite willing to participate in a conference of appointed representatives, but were opposed to Brandeis's idea of convening a congress of delegates elected by the Jewish population. Nevertheless a year later, delegates representing over one million Jews came together in Philadelphia and elected a National Executive Committee with Brandeis as honorary chairman. On April 6, 1917, America entered the war. On June 10, 1917, 335,000 American Jews cast their votes and elected their delegates who, together with representatives of some 30 national organizations, established the American Jewish Congress on a democratically elected basis, but further efforts to organize awaited the end of the war.
In 1919 Brandeis broke on issues of structural organization and financial planning with Chaim Weizmann, the leader of European Zionism. In 1921 Weizmann's candidates, headed by Louis Lipsky, defeated Brandeis's for political control of the Zionist Organization of America. Brandeis resigned from the ZOA, along with his closest associates Rabbi Stephen S. Wise, Judge Julian W. Mack and Felix Frankfurter. His ouster was devastating to the movement, and by 1929 there were no more than 18,000 members in the ZOA. Nonetheless he remained active in philanthropy directed at Jews in Palestine. In the summer of 1930, these two factions and visions of Zionism, would come to a compromise largely on Brandeis's terms, with a changed leadership structure for the ZOA. In the late 1930s he endorsed immigration to Palestine in an effort to help European Jews escape genocide when Britain denied entry to more Jews.
Brandeis retired from the Supreme Court in February 1939, and he died on October 5, 1941, following a heart attack.
The remains of both Justice Brandeis and his wife are interred beneath the portico of the Law School of the University of Louisville, in Louisville, Kentucky. Brandeis himself made the arrangements that made the law school one of only thirteen Supreme Court repositories in the U.S. His professional papers are archived at the library there.
Brandeis lived to see many of the ideas that he had championed become the law of the land. Wages and hours legislation were now accepted as constitutional, and the right of labor to organize was protected by law. His spirited, eloquent defense of free speech and the right of privacy have had a continuing, powerful influence upon the Supreme Court and, ultimately, upon the life of the entire nation. The Economist magazine calls him "A Robin Hood of the law," and former Secretary of State Dean Acheson, his early law clerk, was "impressed by a man whose personal code called for ... the zealous molding of the lives of the underprivileged so that paupers might achieve moral growth.":246
Wayne McIntosh writes of him, "In our national juristic temple, some figures have been accorded near-Olympian reverence... a part of that legal pantheon is Louis D. Brandeis – all the more so, perhaps because Brandeis was far more than a great justice. He was also a social reformer, legal innovator, labor champion, and Zionist leader... And it was as a judge that his concepts of privacy and free speech ultimately, if posthumously, resulted in virtual legal sea changes that continue to resonate even today." Former Justice William O. Douglas wrote, "he helped America grow to greatness by the dedications of which he made his life."
Brandeis and his ally Felix Frankfurter engaged in extensive off-the-bench political activities which both men tried to conceal. These extrajudicial activities may have established a dangerous precedent.
The U.S. Postal Service in September 2009 honored Brandeis by featuring his image on a new set of commemorative stamps along with U.S. Supreme Court associate justices Joseph Story, Felix Frankfurter and William J. Brennan Jr. In the Postal Service announcement about the stamp, he was credited with being "the associate justice most responsible for helping the Supreme Court shape the tools it needed to interpret the Constitution in light of the sociological and economic conditions of the 20th century." The Postal Service honored him with a stamp image in part because, their announcement states, he was "a progressive and champion of reform, [and] Brandeis devoted his life to social justice. He defended the right of every citizen to speak freely, and his groundbreaking conception of the right to privacy continues to impact legal thought today."
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Louis Dembitz Brandeis
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|Associate Justice of the Supreme Court of the United States|
June 1, 1916–February 13, 1939
William O. Douglas