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Louis Brandeis

 
US Supreme Court: Louis Dembitz Brandeis
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(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

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Biography: Louis Dembitz Brandeis
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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).

Britannica Concise Encyclopedia: Louis Dembitz Brandeis
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Louis Brandeis.
(click to enlarge)
Louis Brandeis. (credit: Library of Congress, Washington, D.C.)
(born Nov. 13, 1856, Louisville, Ky., U.S. — died Oct. 5, 1941, Washington, D.C.) U.S. jurist. The son of Bohemian Jewish immigrants, he attended schools in Kentucky and Germany before obtaining his law degree from Harvard (1877). As a lawyer in Boston (1877 – 1916), he was known as "the people's attorney" for his defense of the constitutionality of several state hours-and-wages laws, his devising of a savings-bank life-insurance plan for working people, and his efforts to strengthen the government's antitrust power. His work influenced passage in 1914 of the Clayton Anti-Trust Act and the Federal Trade Commission Act. He also developed what came to be called the "Brandeis brief," in which economic and sociological data, historical material, and expert opinion are marshaled to support a legal argument. Appointed to the Supreme Court of the United States (1916), he was noted for his devotion to freedom of speech. Many of his minority opinions, in which he was often aligned with Oliver Wendell Holmes, Jr., later were accepted by the court in the New Deal era. His appointment as the first Jewish justice was vigorously opposed by some business interests and anti-Semitic groups. He served until 1939. Brandeis University is named for him.

For more information on Louis Dembitz Brandeis, visit Britannica.com.

US Government Guide: Louis Dembitz Brandeis, Associate Justice, 1916–39
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• Born: Nov. 13, 1856, Louisville, Ky.
• Education: Harvard Law School, LL.B., 1877
• Previous government service: attorney, Massachusetts State Board of Trade, 1897–1911; counsel, Ballinger-Pinchot Investigation, 1910; chairman, arbitration board, New York garment workers' labor disputes, 1910–16
• Appointed by President Woodrow Wilson Jan. 28, 1916; replaced Joseph R. Lamar, who died
• Supreme Court term: confirmed by the Senate June 1, 1916, by a 47–22 vote; retired Feb. 13, 1939
• Died: Oct. 5, 1941, Washington, D.C.

Louis Dembitz Brandeis was the first Jew to serve on the Supreme Court of the United States. His parents, Adolph and Fredericka Dembitz Brandeis, were immigrants from Bohemia who came to the United States in 1848.

The Brandeis family settled in Louisville, Kentucky, where Adolph Brandeis became a successful grain merchant who provided Louis with extraordinary opportunities for education and personal development. Louis completed two years of study at the highly regarded Annen-Realschule in Dresden, Germany. Brandeis returned to the United States to enter Harvard Law School, from which he graduated first in his class in 1877.

Soon after graduation, Brandeis began a law practice in Boston with his close friend and classmate Samuel Warren. By the turn of the century, Brandeis had become a nationally famous lawyer. News reporters called him the “people's attorney” because Brandeis often charged no fee for defending the rights of poor and disadvantagedpeople. He was also an active supporter of public reforms to bring about equal opportunities and fairness in the operations of businesses and government.

As the defense attorney in Muller v. Oregon (1908), Brandeis invented a new kind of legal argument, one based on sociological and economic evidence rather than legal precedent. Brandeis argued successfully for an Oregon law that limited the number of hours that women could work in laundries and other businesses. Brandeis's use of social science evidence to support legal reform of workplace conditions became a model for other lawyers, a type of document that they called “the Brandeis brief.”

President Woodrow Wilson greatly respected Brandeis and often relied upon his advice. In 1916 Wilson appointed him to the U.S. Supreme Court to fill a vacancy created by the death of Justice Joseph R. Lamar. A vicious public controversy erupted over the nomination.

Many opponents disliked Brandeis because of his record as a political and social reformer. Others were against him because he was a Jew. One of his strongest supporters, Arthur Hill of Harvard Law School, explained the opposition to Brandeis's Supreme Court nomination: “Mr. Brandeis is an outsider, successful and a Jew.”

The storm over President Wilson's appointment of Brandeis lasted for more than four months. This was the longest and most bitter battle over confirmation of an associate justice in the history of the Court. The closest example in recent times was the furor over the 1986 nomination of Robert Bork by President Ronald Reagan. Unlike the Bork nomination, however, the Brandeis appointment was eventually supported by the Senate Judiciary Committee, 10 votes to 8. Finally, the full Senate confirmed Brandeis by a vote of 47 to 22.

The new justice's troubles were not over, however. One of his new colleagues, Justice James Clark McReynolds, refused to speak to Brandeis for more than three years. He would leave the conference table whenever Brandeis spoke, revealing his prejudice against the first Jew to serve on the Court.

Brandeis overcame this kind of hostility to become one of the greatest justices of all time. His most important opinions dealt with the constitutional rights of individuals. He sought to protect helpless individuals. against oppression by uncaring government officials or an intolerant majority of the people. In Olmstead v. United States (1928) for example, Brandeis argued in a dissenting opinion for a general constitutional right to privacy. The Court had decided that wiretapping by federal government officials was not a violation of the 4th Amendment. Brandeis disagreed: “The makers of our Constitution… sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.”

Brandeis's dissent was vindicated in Katz v. United States (1967), when the Court overturned the Olmstead decision. In Griswold v. Connecticut (1965), the Court recognized a constitutional right to privacy for which Brandeis had argued many years before.

Brandeis was a leader in the movement to apply the federal Bill of Rights to the states through the due process clause of the 14th Amendment, a concept known as the incorporation doctrine. He first stated this idea in Gilbert v. Minnesota (1920). A few years later, the Court recognized this idea in Gitlow v. New York (1925). Since then, more and more parts of the Bill of Rights have been used to protect the liberties of individuals against state government violations.

Justice Brandeis was an especially vigorous defender of 1st Amendment freedoms. Through his Supreme Court opinions, he contributed mightily to the gradual expansion of these individual rights. He memorably expressed his commitment to 1st Amendment liberties in Whitney v. California (1927): “Those who won our independence believed that the final end of the State was to make men free to develop their faculties…. They believed liberty to be the secret of happiness.”

Louis Brandeis served on the Court for 23 years, retiring in 1939 at the age of 82. A New York Times reporter noted: “The storm against him [when he was appointed to the Court] seems almost incredible now.” Today, legal experts rate Louis Dembitz Brandeis one of the greatest justices in the history of the Supreme Court.

See also Incorporation doctrine; Muller v. Oregon; Olmstead v. United States; Privacy, right to

Sources

  • Leonard Baker, Brandeis and Frankfurter: A Dual Biography (New York: New York University Press, 1984).
  • Lewis J. Paper, Brandeis (Englewood Cliffs, N.J.: Prentice-Hall, 1983).
  • Phillipa Strum, Louis D. Brandeis: Justice for the People (Cambridge: Harvard University Press, 1984)
US History Companion: Brandeis, Louis D.
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(1856-1941), lawyer, reformer, and associate justice, U.S. Supreme Court. Born in Louisville, Kentucky, Brandeis attended the Harvard Law School and shortly after graduation opened a practice in Boston with Sam Warren, a law school classmate. At a time when industrialization was revolutionizing legal work, Brandeis was one of the first to recognize that clients needed advice prior to acting in order to avoid expensive litigation and problems with regulatory agencies. By the end of the century, Brandeis had become one of the most sought-after lawyers in the country.

By then, however, he had shifted his interest from the practice of law to reform. Like many Progressives, he believed that industrialization and monopoly limited individual opportunity and corrupted the political system. He started his reform efforts locally, opposing corrupt traction franchises in Boston. He then moved to the state level, where he demonstrated the traits that made him so effective. He not only exposed the high rates insurance companies charged workers for limited coverage but came up with a solution--savings bank life insurance--which he saw through to its establishment in 1907.

Brandeis gained a national reputation as the "People's Attorney," for his then-unique trait of defending public causes without a fee. In Muller v. Oregon (1908), he pioneered a new type of appellate legal brief, emphasizing economic and social evidence rather than legal precedents. The "Brandeis brief" became the prototype for later reform litigation.

Between 1908 and 1916 Brandeis devoted himself almost entirely to reform work, such as exposing the Taft administration's bungling in the Ballinger-Pinchot affair. In 1912 he met Woodrow Wilson and helped him formulate for the 1912 presidential campaign the New Freedom program, with its emphasis on competition, in response to Theodore Roosevelt's call for extensive governmental regulation of business. Brandeis also headed the American Zionist movement, which by 1919 he had made into the largest Jewish organization in the country.

In 1916 Wilson named Brandeis to the Supreme Court. In his twenty-three years on the bench, he earned a reputation as the greatest legal craftsman of his era. Although he often dissented, his carefully argued opinions were in practically every instance eventually adopted by later courts.

Brandeis's ideas affected many areas of law, but his greatest contributions involved privacy and the application of the Bill of Rights. In Olmstead v. United States (1928), a decision upholding wiretapping, he entered an eloquent dissent arguing for the first time that a constitutional right of privacy exists. A few years earlier he had argued that the Fourteenth Amendment's due process clause applied the First Amendment's guarantee of free speech to the states.

Throughout the conservative domination of the Court in the 1920s and early 1930s, Brandeis led the liberal minority in maintaining that state legislatures and Congress had the right to experiment in response to changing socioeconomic conditions. This doctrine of judicial restraint and deference to the legislative branch in economic matters became accepted by the entire Court in the 1940s.

Bibliography:

Philippa Strum, Louis D. Brandeis: Justice for the People (1984).

Author:

Melvin I. Urofsky

See also Ballinger-Pinchot Controversy; Muller v. Oregon ; New Freedom; Progressivism; Supreme Court.


 
Columbia Encyclopedia: Louis Dembitz Brandeis
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Brandeis, Louis Dembitz (brăn'dīs), 1856-1941, Associate Justice of the U.S. Supreme Court (1916-39), b. Louisville, Ky., grad. Harvard law school, 1877. A successful Boston lawyer (1879-1916), Brandeis distinguished himself by investigating insurance practices and by establishing (1907) Massachusetts savings-bank insurance. After defending (1900-1907) the public interest in Boston utility cases, he served (1907-14) as counsel for the people in proceedings involving the constitutionality of wages and hours laws in Oregon, Illinois, Ohio, and California. In Muller v. Oregon (1908) he persuaded the U.S. Supreme Court that minimum-hours legislation for women was reasonable-and not unconstitutional-with a brief primarily consisting of statistical, sociological, economic, and physiological information. This "Brandeis brief," as it came to be called, revolutionized the practice of law. He opposed (1907-13) the monopoly of transportation in New England and successfully argued (1910-14) before the Interstate Commerce Commission against railroad-rate increases. In 1910 as one of the counsel in the congressional investigation of Richard A. Ballinger, he exposed the anticonservationist views of President Taft's Secretary of the Interior. As an arbitrator (1910) of a strike of New York garment workers (mostly Jewish), he became acutely aware of Jewish problems and afterward was a leader of the Zionist movement. An enemy of industrial and financial monopoly, he formulated the economic doctrine of the New Freedom that Woodrow Wilson adopted in his 1912 presidential campaign. Over the protests of the vested interests that Brandeis had alienated as "people's attorney," Wilson appointed (1916) him to the U.S. Supreme Court although opposition was voiced by anti-Semites and certain business interests. Long an advocate of social and economic reforms, he maintained a position of judicial liberalism on the bench. With Oliver Wendell Holmes, he often dissented from the majority. After Franklin Delano Roosevelt became (1933) President, Brandeis was one of the few justices who voted to uphold most of Roosevelt's New Deal legislation. He retired from the bench in 1939. Brandeis Univ. is named after him. He wrote Other People's Money (1914) and Business, a Profession (1914). For selections of his writings, see Alfred Lief, ed., The Social and Economic Views of Mr. Justice Brandeis (1930); O. K. Fraenkel, ed., The Curse of Bigness (1935); Solomon Goldman, ed., The Words of Justice Brandeis (1953).

Bibliography

See his letters, ed. by M. I. Urofsky and D. W. Levy (1971); biography by A. T. Mason (1946, repr. 1956); studies by M. I. Urofsky (1971, repr. 1981), P. Strum (1984), and N. L. Dawson, ed. (1989); A. M. Bickel, The Unpublished Opinions of Mr. Justice Brandeis (1957).

Works: Works by Louis Brandeis
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(1856-1941)

1914Other People's Money. Here the lawyer and social reformer suggests that the current borrowing system contributes to the concentration of wealth in the United States. His analysis impresses Woodrow Wilson and contributes to Brandeis's appointment to the Supreme Court in 1916.

History Dictionary: Brandeis, Louis D.
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(bran-deyes, bran-deyez)

A judge of the twentieth century, he served on the Supreme Court from 1916 to 1939. Brandeis believed that economic and social facts had to take precedence over legal theory. He was the first Jew to serve on the Supreme Court.

Quotes By: Louis D. Brandeis
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Quotes:

"Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal well meaning but without understanding."

"Men long for an afterlife in which there apparently is nothing to do but delight in heaven's wonders."

"Most of the things worth doing in the world had been declared impossible before they were done."

"The greatest dangers to liberty lurk in insidious encroachment by men of zeal -- well-meaning but without understanding."

"Behind every argument is someone's ignorance."

"The right to be alone -- the most comprehensive of rights, and the right most valued by civilized man."

See more famous quotes by Louis D. Brandeis

Wikipedia: Louis Brandeis
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Louis Dembitz Brandeis

In office
June 5, 1916 – February 13, 1939
Nominated by Woodrow Wilson
Preceded by Joseph Rucker Lamar
Succeeded by William O. Douglas
Born November 13, 1856(1856-11-13)
Louisville, Kentucky
Died October 5, 1941 (aged 84)
Washington, D.C.
Spouse(s) Alice Goldmark
Alma mater Harvard Law School

Louis D. Brandeis (November 13, 1856 – October 5, 1941) was a United States Supreme Court Justice from 1916 to 1939. He was born in Louisville, Kentucky to Jewish parents who had immigrated from Europe. He enrolled at Harvard Law School, graduating at the age of twenty and earned the highest grade average in the college’s history.

Brandeis settled in Boston where he became a recognized lawyer through his work on social causes that would benefit society. 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". Years later, a book he published, entitled Other People's Money, suggested 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 the "Jewish problem" of 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 preventing 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 U.S. 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 and would become one of the most famous and influential figures ever to serve on it. His case 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 high court.

Contents

Early life

Family roots

Louis Brandeis was born on November 13, 1856, in Louisville, Kentucky, as the youngest of four children. His parents, Adolph and Frederika (Dembitz), both of whom were Jewish, emigrated to the United States from their childhood homes in Prague, Czech Republic (then part of Austrian Empire). They emigrated as part of their extended family due to both economic and political factors:

According to legal historians Diana Klebanow and Franklin Jonas, their decision to go to America was also influenced by the Revolutions of 1848 which led to a series of political upheavals throughout the European continent. They write that although the families had been "liberal in their political views and sympathetic to the rebel cause, [they were] shocked by the anti-Semitic riots that erupted in Prague while the city was in the hands of the Czech rebels." [1] :55 In addition, Jews in the Habsburg Empire had been required to pay "special" business taxes.

As a result of the growing mistreatment of Jews in their homeland, the elders dispatched Adolph Brandeis to America "to prepare the way for the possible immigration of his relatives." Klebanow and Jonas write, "after spending a few months in the Midwest, Adolph [was] impressed by the nation's institutions and was moved by the tolerance he had encountered among its people." He wrote to Frederika: "America's progress is the triumph of the rights of man."[1]:56

The Brandeis family settled in Louisville partly because it was one of the prospering river ports of the Midwest. Louis's father developed a grain-merchandising business but suffered setbacks during the Long Depression of the 1870s. [2]:121 His earliest childhood was also shaped by the Civil War, as the family was forced to move to Indiana temporarily for its safety. The Brandeis family was known to support Abraham Lincoln's call for the end of slavery and their abolitionist beliefs angered their neighbors in Louisville. "Kentucky was one of its many battlegounds, ... and his family was firmly in the antislavery camp."[1]:57

Family life

Klebanow and Jonas write that the Brandeises were "a cultured family who never talked of business or money matters at the dinner table, discussing instead a wide array of subjects pertaining to history, politics, and culture as well as to 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. [1]

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, even celebrating the main Christian holidays along with most of their community. [2] To the Brandeis family, Christmas "was always a purely secular occasion," notes Klebanow and Jonas. "While rejecting organized religion, Frederika and Adolph raised their children to be high-minded idealists."[1] In later years, Frederika wrote of this period:

"I believe that only goodness and truth and conduct that is humane and self-sacrificing toward those who need us can bring God nearer to us ... I wanted to give my children the purest spirit and the highest ideals as to morals and love. God has blessed my endeavors." [3]:28

Childhood education

According to historian John Vile, 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."[2]

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." [4]:10. However, in 1872, "Adolph Brandeis became so concerned about the impending economic depression," writes Vile, "that he moved his family to Europe..." After a period spent traveling, Louis spent two years studying at the Annen-Realschule in Dresden, Germany, where he excelled. As Vile explains, "it was this training that Brandeis later credited for teaching him critical thinking and for his desire to return to the United States to study law."[2]

Law school

Returning to the U.S. in 1875, Brandeis next entered Harvard Law School at the age of nineteen. According to Klebanow and Jonas, "he chose the law as his life's work largely out of admiration for his uncle, Lewis Dembitz, a frequent visitor to the Brandeis household, whom he idolized for his wide learning and skill in debate."[1]:58 Despite the fact that he entered the school without any formal training or financial assistance from his family, who had suffered during the depression, "he proved to be an extraordinary student," notes Vile.

During his time at Harvard, the teaching of law was undergoing a change of method from relying on the traditional, memorization-reliant, "black letter" case law, to a more flexible and interactive Socratic method, using prior cases as a basis for discussion to instruct students in legal reasoning. Instead of memorizing textbooks, students would examine individual cases. "Brandeis took readily to the new methods and immediately made his presence felt through his contributions to class discussions."[1] He also "began to demonstrate considerable skills as a budding judge with his participation in the Pow-Wow law club, an activity similar to today's law school moot courts", writes Vile.

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.[5]

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 "should give up his studies entirely." But instead, he found another alternative, and paid fellow law students to read the textbooks aloud, while he would attempt to memorize the legal principles. Despite the difficulties, his academic work and memorization talents were so impressive that, writes Vile, "he graduated as the valedictorian, achieving what was then the highest grade point average in the history of the legendary school."[2]:122 According to Klebanow and Jonas, his grades set a record "that stood for eight decades."[1] Brandeis later wrote: "Those years were among the happiest of my life. I worked! For me, the world's center was Cambridge."[3]:47

Early career in law

Photo of Louis Brandeis (circa 1900)

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[6] and accepted a job with a law firm in St. Louis, where he filed his first brief and published his first law review article.[1] 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.

Soon after returning to Boston, while waiting for the law firm to gain clients, he was appointed law clerk to Horace Grey, 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 Grey."[1]:59

First law firm: Warren and Brandeis

Their 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,"[1] garnering Brandeis more financial security and the freedom to eventually take an active role in progressive causes.

As partner in his law firm, he worked as a consultant and advisor to businesses, but was also "a capable litigator who reveled in the challenge of the courtroom," notes Klebanow and Jonas. In a letter to his brother, he wrote, "There is a certain joy in the exhaustion and backache of a long trial which shorter skirmishes cannot afford."[1] In 1889, he pleaded for the first time before the U.S. Supreme Court as the eastern counsel of the Wisconsin Central Railroad, a case which he won. According to Alfred Lief, Brandeis's biographer, Chief Justice Melville Fuller was "so impressed by Brandeis's presentation that he would soon afterward call him 'the ablest attorney he knew of in the East'."[7]

Acting as business advisor

According to Klebanow and Jonas, when taking on business clients, he would insist on two major conditions: "first, that he would never have to deal with intermediaries, but only with the person in charge ... 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 truly a 'counselor at law,' rather than as merely a strategist in lawsuits. The idea was to help the client to avoid lawsuits, strikes, and other crises by timely advice..."[1] As he wrote in 1911, "I would rather have clients than be somebody's lawyer."[3]:86 In a note found among his papers, he reminded himself to "advise client on what he should have, not what he wants."[3]:20

In a book he edited in 1911, Brandeis wrote the following:

"Of course there is an immense amount of litigation going on and a great deal of the time of many lawyers is devoted to litigation. But by far the greater part of the work done by lawyers is not done in court at all, but in advising men in important matters, and mainly in business affairs. . . So, some of the ablest American lawyers of this generation, after acting as professional advisers of great corporations, became finally their managers."[8]

Setting moral standards

Brandeis was unusual among lawyers because "he refused to serve in a cause that he considered bad," write Klebanow and Jonas. 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."[1] 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."[3]:233

Creating a Right to Privacy

Between 1888 and 1890, Brandeis and his law partner, Samuel Warren, collaborated on writing three scholarly articles which were published in the Harvard Law Review. Their third, entitled The Right to Privacy, was "by far the most important," according to Klebanow and Jonas. It was later credited by noted legal scholar Roscoe Pound as having accomplished 'nothing less than adding a chapter to our law.'"

The issue dealt with the development of the modern newspapers and the new technology of "snapshot photography," which resulted in the publication of photographs of private persons along with their words and statements, all without consent. They argued that private individuals were being continually injured and the "moral standards of society as a whole" were being weakened. Klebanow and Jonas describe their motives in writing the article:

"In their search for a principle of law that would protect privacy, Warren and Brandeis contended that since individuals may under the common law normally decide (as in copyright law) whether to communicate to others their thoughts, sentiments, and emotions, it followed that a right to privacy already existed. 'The cases referred to ... would be merely another application of an existing rule.'"[1]:61 [9]
Privacy in tort

Legal historian Wayne McIntosh writes 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. . . Like computer prodigy Bill Gates, Brandeis ultimately foisted on the market a product largely of his own creation . . . for there was nothing resembling an explicit notion of privacy in tort law in 1890."[10]:24 As a direct result, states began using the new concept: in 1905 the Georgia Supreme Court declared a right to privacy in a case involving photographs; by 1909, California, New York, Pennsylvania, Virginia, and Utah had all passed statutes recognizing the right; and in 1939, the Restatement of Torts also proclaimed a right to privacy. Years later, after becoming a justice on the Supreme Court, he would expand on this new right in one of the most famous dissenting opinions in the court's history: Olmstead v. United States.

Excerpts from The Right to Privacy (1890)
"That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society.
. .
"The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury." [9]

New phase as public lawyer

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 took on cases alone from then on with the help of colleagues, two of which he made partners in his new firm, Brandeis, Dunbar, and Nutter, eight years later in 1897.[3]:82-86

He won his first important victory in 1891, where he persuaded the legislature of Massachusetts "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."[7]:34-37 The legislature was won over by his arguments and the regulations were changed.

Personal life and marriage

Brandeis canoe.jpg

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 a physician who had emigrated to America from Austria 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, 1896. [3]:72-78

According to Klebanow and Jonas, the Brandeis family "lived well but without extravagance." With the continuing success of his law practice, they later purchased a vacation cottage in Dedham where they would spend many of their weekends and summer vacations. Unexpectedly, his wife's health soon became frail, so in addition to his professional duties he found it necessary to manage the family's domestic affairs.[2]

"They shunned the more luxurious ways of their class, holding few formal dinner parties and avoiding the luxury hotels when they traveled. Brandeis would never fit the stereotype of the wealthy man. Although he belonged to a polo club, he never played polo. He owned no yacht, just a canoe that he would paddle by himself on the fast-flowing river that adjoined his cottage in Dedham."[4]:45-49 He wrote to his brother of his brief trips to Dedham: "Dedham is a spring of eternal youth for me. I feel newly made and ready to deny the existence of these gray hairs."

Becoming a public advocate

With their finances secure, Louis and Alice resolved that he should devote most of his time to public causes.[1]:63 One of his primary goals, according to historian Steven Piott, was to "chip away at the assumption that the principles of law should be unchanging." He quotes Brandeis, who wrote "the law has everywhere a tendency to lag behind the facts of life." Therefore, "it would be up to Brandeis and other reform-minded lawyers," adds Piott, ". . . to break the traditional hold on legal thinking and work to harmonize the law with the needs of the community."[11]

Louis Brandeis, 1915

Part of his reasoning and philosophy for acting as a public advocate was explained in his 1911 book, The Opportunity in the Law:

"The counsel selected to represent important private interests possesses usually ability of a high order, while the public is often inadequately represented or wholly unrepresented. That presents a condition of great unfairness to the public. As a result, many bills pass in our legislatures which would not have become law if the public interest had been fairly represented. . . Those of you who feel drawn to that profession may rest assured that you will find in it an opportunity for usefulness probably unequaled. There is a call upon the legal profession to do a great work for this country."[8]

In one of his first such cases, 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."[1] 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.[7]:52-54

Against monopolies

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."[1] His earlier legal battles had convinced him, according to Piott, "that concentrated economic power could have a negative effect on a free society."[11]:139

However, he also recognized the limits of trying to split up some monopolies. In an address in 1912, he said:

"Understand, I am not for monopoly when we can help it. We intend to restore competition. We intend to do away with the conditions that make for monopoly. But there are certain monopolies that we cannot prevent. I understand that the steel trust is not an absolute monopoly, but if it were, what would be the use of splitting up the steel trust into companies controlled by Morgan, Carnegie, and Rockefeller, say? Would it ameliorate conditions at all? Would it make prices lower to the consumer?-the wages and the conditions higher to the worker? Don't you suppose that these three fellows would agree on prices and methods unofficially?" [12]

Against powerful corporations

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. 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.[1]:76 Although the Sherman Anti-Trust Act was enacted in 1890, it was not until the 1900s 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 to continuing concentration of industry and therefore, like it or not, big business was here to stay."[1]: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. [1]

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:

"We learned long ago that liberty could be preserved only by limiting in some way the freedom of action of individuals; that otherwise liberty would necessarily yield to absolutism; and in the same way we have learned that unless there be regulation of competition, its excesses will lead to the destruction of competition, and monopoly will take its place.
"A large part of our people have also learned that efficiency in business does not grow indefinitely with the size of business. Very often, a business grows in efficiency as it grows from a small business to a large business; but there is a unit of greatest efficiency in every business, at any time, and a business may be too large to be efficient, as well as too small. Our people have also learned to understand the true reason for a large part of those huge profits which have made certain trusts conspicuous. They have learned that these profits are not due in the main to efficiency, but are due to the control of the market, to the exercise by a small body of men of the sovereign taxing power."[12]

Against public corruption

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.[4]: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."[7].: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.[3] If one of his public addresses in 1903, he stated his goal:

"We want a government that will represent the laboring man, the professional man, the businessman, and the man of leisure. We want a good government, not because it is good business but because it is dishonorable to submit to a bad government. The great name, the glory of Boston, is in our keeping."[3]:121

In 1906, Brandeis won a modest victory when the state legislature "enacted an anticorruption measure that he had drafted" which made 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.[3]: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:

"They cannot be worthy of the respect and admiration of the people unless they add to the virtue of obedience some other virtues - the virtues of manliness, of truth, of courage, of willingness to risk positions, of the willingness to risk criticism, of the willingness to risk the misunderstanding that so often comes when people do the heroic thing."[13]:251

His influence in this area continued years after he died: after World War II, for instance, President Harry S. Truman, who became a "disciple" of Brandeis, insisted on compulsory bidding for securities "to drive a wedge between companies and their customary bankers," writes Chernow.[14]:503

Against mass consumerism

Among Brandeis's key themes was the conflict he saw between nineteenth-century values with its culture of the small producer, against an emerging twentieth-century age of big business and its 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."[5]:107

Becoming the "People's Lawyer"

Brandeis (center) in his Boston office, 1916

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."[1]:66

In a 1905 address to law students and others at Harvard, he explained his philosophy:

"The great achievement of the English-speaking people is the attainment of liberty through law. It is natural, therefore, that those who have been trained in the law should have borne an important part in that struggle for liberty and in the government which resulted . . . .
Instead of holding a position of independence, between the wealthy and the people, prepared to curb the excesses of either, able lawyers have, to a large extent, allowed themselves to become adjuncts of great corporations and have neglected the obligation to use their powers for the protection of the people. We hear much of the 'corporation lawyer,' and far too little of the 'people's lawyer.' The great opportunity of the American Bar is and will be to stand again as it did in the past, ready to protect also the interests of the people."[15]

By that time, with his finances secure, he had begun taking on cases where he felt he could make a difference and in some way improve the life of the average person. Justice William O. Douglas wrote about this new attitude by Brandeis:

"His crusades in public causes were not made for fees; he contributed his services, . . . He and his wife were not socially or politically ambitious. There was therefore no way of seducing them into 'respectability.' No network of corporate affiliations or retainers or directorships could tempt him or still his voice."[16]

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:

"Mr. Brandeis frankly admits that the thing looks queer . . . Some men buy diamonds, some collect paintings and rare works of art, others delight in automobiles or swift aero racers. His hobby is to give himself the luxury of taking up a problem for the people and absolutely refusing to be compensated therefor.
"In this way he expects to be able to avoid the misfortune of accumulating too great wealth and leaving to his children the handicap of having too much money. He would prefer that they should earn their way. He had the good fortune just as he was beginning to study law to be compelled by his father's financial reverses to borrow means to go on with his studies, and he has always believed it was a providential experience."[17]

Developing new life insurance system

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 him 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."[4]: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 cancelled 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.[1]

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..."[3]: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." [3]:177-180

Preventing J.P. Morgan's railroad monopoly

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."[1]: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," according to historian John Weller.[18]:41-52 In June, 1907, he 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." 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.[1]:69 "I have made," he wrote his brother, "more enemies than in all my previous fights together."[1]: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."[18]: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."[1] 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."[3]:203-214

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."[14]:379

Upholding workplace laws with the "Brandeis Brief"

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."[4]:120-121

Leading defender of labor laws

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" .[3]:250-253 [19] 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."[16]

The "Brandeis Brief"

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.[20] According to John Vile, this new "Brandies Brief" was increasingly used, most notably in the Brown v. Board of Education case in 1954 that desegregated public schools.[2]:123

Supporting President Wilson

President Woodrow Wilson, 1919

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 Republican 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 other unfair business practices that made them possible.[21]:1-24

Because the Democratic position seemed preferable to that of the Republicans, Brandeis began to support Wilson, and urged his friends and associates to fall behind him. According to Piott, "Brandeis, who was nominally a Republican, cast his support behind Democrat Woodrow Wilson, feeling that he and Wilson were kindred spirits in their economic and moral philosophies."[11]:139 The two men met for the first time at a private conference in New Jersey that August where they spent three hours discussing economic issues. According to Mason, 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.'"[3] "He has found his captain," Mason writes. As a result of their meeting, Wilson began using the term "regulated competition," the concept that Brandeis had developed, and made it the essence of his program. In September, Wilson asked him to "set forth explicitly the actual measures by which competition can be effectively regulated." [3]:375-377

Wilson won the election that November, and later wrote to Brandeis, "You were yourself a great part of the victory. It now remains for us to devote all our strength to making good." Wilson considered Brandeis for the post of Attorney General and later, 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 simply too controversial a figure to appoint to his cabinet. [7]:257-258

Helping form the Federal Reserve Act

Although passed over for cabinet positions, he would continue to exert influence both within the administration and in Congress. 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 William Jennings Bryan, who, according to Piott, felt that "the banking system needed to be democratized and its currency issued and controlled by the government," [11]:139 and convinced Congress to enact the Federal Reserve Act in December 1913.[22]:28-31

Helping create the Federal Trade Commission (FTC)

In 1913, Brandeis had written 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.[23] He was also urging the Wilson administration to develop and present to Congress proposals for new antitrust legislation . . . which gave the Department of Justice the power to enforce antitrust laws. According to McCraw he was "one of the architects of the FTC" and had served as Wilson's chief economic adviser from 1912 until 1916. "Above all else," writes McCraw, "Brandeis exemplified the anti-bigness ethic without which there would have been no Sherman Act, no antitrust movement, and no Federal Trade Commission."[5]:82

Other People's Money (excerpt)
"Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."[23]
Modern day influences

Today's business editors still refer to Brandeis's economic philosophy when trying to draw parallels between today's economic situation with those of earlier periods, as this 2009 New York Times editorial does:

"Brandeis . . . described a dangerous combination of avarice, lack of accountability and poor oversight in Other People's Money, and How the Bankers Use It, one of the best-known exposés of the Progressive era. . . It also offers valuable lessons for today.
"Our current crisis, after all, was in part fueled by bankers making big gambles with other people's cash. They bundled and sold sub-prime mortgages, took their profits, and then left others holding portfolios full of worthless, even toxic, paper. This was exactly the kind of behavior that Brandeis despised."[24]

Supreme Court Justice

Confirmation debate

In 1916, Wilson nominated 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 Taft, whose credibility was damaged by Brandeis in court battles and at one point calling him a "muckraker."[3]:470 Further opposition came from the legal profession, including former presidents of the American Bar Association, such as ex-Senator Elihu Root of New York, claiming he was "unfit" to serve on the Supreme Court.[3]:470-475

"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."[1] 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."[25]:73 Justice William O. Douglas, many years later, wrote about the conflicts surrounding his nomination:

"It followed that the image of Brandeis, when Wilson sent his name to the Senate on Jan. 28, 1916, was one that frightened the Establishment. 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. . . The fears of the Establishment were greater because Brandeis was the first Jew to be named to the Court."[16]

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." [25]:208 In a letter of response to a senator, President Wilson gave some reasons why he selected Brandeis:

Excerpts of letter by President Wilson in support of Brandeis, May 9, 1916
"I have known him. I have tested him by seeking his advice upon some of the most difficult and perplexing public questions about which it was necessary for me to form a judgment. . . In every matter. . . I have received from him counsel singularly enlightening, singularly clear-sighted and judicial, and, above all, full of moral stimulation. He is a friend of all just men and a lover of the right; and he knows more than how to talk about the right - he knows how to set it forward in the face of its enemies. . .
"You will remember that in the opinion of the late Chief Justice Fuller, he was the ablest man who ever appeared before the Supreme Court of the United States. "He is also," the Chief Justice added, "absolutely fearless in the discharge of his duties." . . . And some gentlemen who tried very hard to obtain control of the Boston [Railroad company] can probably testify as to his ability as the people's advocate when public interests call for an effective champion. He rendered those services without compensation, and earned the gratitude of every citizen of the State. . . It will hearten friends of the community and public rights throughout the country to see his quality signally recognized by his elevation to the Supreme Bench. For the whole country is aware of his quality and is interested in this appointment. . .
"Of all the men now at the bar whom it has been my privilege to observe, test, and know, he is exceptionally qualified. I cannot speak too highly of his impartial, impersonal, orderly, and constructive mind, his rare analytical powers, his deep human sympathy, his profound acquaintance with the historical roots of our institutions and insight into their spirit, or of the many evidences he has given of being imbued, to the very heart, with our American ideals of justice and equality of opportunity; of his knowledge of modern economic conditions and of the way they bear upon the masses of the people, or of his genius in getting persons to unite in common and harmonious action and look with frank and kindly eyes into each other's minds, who had before been heated antagonists.
"This friend of justice and of men will ornament the high court of which we are all so justly proud. I am glad to have had the opportunity to pay him this tribute of admiration and of confidence; and I beg that your committee will accept this nomination as coming from me. . ."[26]

A month later, on June 1, 1916, the Senate officially confirmed his nomination by a vote of 47 to 22. 44 Democratic Senators voted for his confirmation as did three Republican Senators: La Follette, Norris. and Poindexter. 21 Republican senators voted against Brandeis, as did one Democratic Senator, Francis G. Newlands. Klebanow and Jonas write that "the elevation of Brandeis to the Supreme Court brought to a sudden close the second phase of his career, when as the 'people's lawyer,' he had been a leading figure in the nationwide movement of reform." By joining the Court, they write that he was now embarking an a new career, in which he would "become one of the most famous and influential figures ever to serve on it."[1]

Leading cases

Gilbert v. Minnesota (1920) - Freedom of speech

There was a strong conservative streak in the U.S. beginning with World War I and into the 1920s, and this conservatism was reflected by decisions of the Supreme Court. In clear contrast to many of the Court's positions, however, both Brandeis and Justice Oliver Wendell Holmes often took the dissenting position and became noted for consistently challenging the majority's view. These dissensions were most clear in cases dealing with the free speech rights of defendants during the military draft, leading to Justice Holmes developing the concept of "clear and present danger" as a condition before a violation would be declared and both Holmes and Brandeis using this doctrine in other cases. According to historian John Vile, 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."[2]: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."[27]

One such case was Gilbert v. Minnesota (1920) which dealt with a state law prohibiting any 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. . . the 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."[28]

According to legal author Ken Gormley, "it is clear that 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."[29] And by 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:

"It is now well established that the Constitution protects the right to receive information and ideas. . . If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds. . . Georgia asserts the right to protect the individual's mind from the effects of obscenity. We are not certain that this argument amounts to anything more than the assertion that the State has the right to control the moral content of a person's thoughts."

Whitney v. California (1927) - Freedom of speech

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."[30]:85 In their concurring opinion, they wrote:

"Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of free speech to free men from bondage of irrational fears. . . Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. . . "

Olmstead v. United States (1928) - Right of privacy

In his widely cited dissenting opinion in Olmstead v. United States (1928), Brandeis relied on thoughts he developed in his Harvard Law Review article in 1890. 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 left alone" with the right offered by the Fourth Amendment which disallowed unreasonable search and seizure. Brandeis wrote in his lengthy dissent:

"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred against the government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men." [31]

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 Harris v. U.S., 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[10]: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."[32]: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.[10]: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 Stewart gave 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."[10]

Continuing influences

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'." [10] 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."[33] 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."[34]

Packer Corporation v. Utah (1932) - Captive audience and free speech

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:

"Advertisements of this sort are constantly before the eyes of observers on the streets and in street cars to be seen without the exercise of choice or volition on their part. Other forms of advertising are ordinarily seen as a matter of choice on the part of the observer. The young people as well as the adults have the message of the billboard thrust upon them by all the arts and devices that skill can produce. In the case of newspapers and magazines, there must be some seeking by the one who is to see and read the advertisement. The radio can be turned off, but not so the billboard or street car placard"

Roosevelt's New Deal era

Along with Benjamin Cardozo and Harlan Fiske Stone, Brandeis was considered to be in the liberal wing of the court—the so called Three Musketeers who stood against the conservative Four Horsemen.

Louisville v. Radford (1935) - limiting presidential discretion

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."[2]: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 another case, Schechter Brothers v. The 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.[1] 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." [35]

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," and according to historian Nelson Dawson, "Brandeis . . . was not alone in thinking that Roosevelt's scheme threatened the integrity of the institution."[36]:50-53

Erie Railroad Co. v. Tompkins (1938) - Federal versus state laws

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."[1]

Zionist leader

Brandeis also became a prominent American Zionist, and felt that the re-creation of a Jewish national homeland was one of the key solutions to the "Jewish problem" of antisemitism in Europe and Russia, while at the same time being a way to "revive the Jewish spirit." He explained his belief in the importance of Zionism in a speech he gave in 1915: [37]

(excerpt) "The Zionists seek to establish this home in Palestine because they are convinced that the undying longing of Jews for Palestine is a fact of deepest significance; that it is a manifestation in the struggle for existence by an ancient people which has established its right to live, a people whose three thousand years of civilization has produced a faith, culture and individuality which enable it to contribute largely in the future, as it has in the past, to the advance of civilization; and that it is not a right merely but a duty of the Jewish nationality to survive and develop. They believe that only in Palestine can Jewish life be fully protected from the forces of disintegration; that there alone can the Jewish spirit reach its full and natural development; and that by securing for those Jews who wish to settle there the opportunity to do so, not only those Jews, but all other Jews will be benefited, and that the long perplexing Jewish Problem will, at last, find solution." [37]

Brandeis became active in the Federation of American Zionists as a result. With the outbreak of World War I, the Zionist movement's headquarters in Berlin became ineffectual, and American Jewry had to assume larger responsibility for the Zionist movement. When the Provisional Executive Committee for Zionist Affairs was established in New York, Brandeis accepted unanimous election to be its head. In this position from 1914 to 1918, Brandeis was the leader of American Zionism. Brandeis embarked on a speaking tour in the fall and winter of 1914-1915 to support the Zionist cause, emphasizing the goal of self-determination and freedom for Jews through the development of a Jewish homeland. [37]

Brandeis brought his influence in the Woodrow Wilson administration to bear in the negotiations leading up to the Balfour Declaration. Brandeis split with the European branch of Zionism, led by Chaim Weizmann, and resigned his leadership role in 1921. He retained membership, however, and remained active in Zionism until the end of his life.[38]

Death and legacy

Brandeis retired from the Supreme Court in February 1939, and he died on October 5, 1941, following a heart attack. He 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,"[39] 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."[40]: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.”

Honors

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.[41] 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."[42]

Namesake institutions

  • Brandeis University, in Waltham, Massachusetts, was named after the Justice. Several Brandeis Awards are named in his honor. A collection of his personal papers is available at the Robert D. Farber University Archives & Special Collections Department at Brandeis University.
  • The University of Louisville's Louis D. Brandeis School of Law is also named after him. The remains of both Justice Brandeis and his wife are interred beneath the school.[43] His remains are appropriately located approximately fifty yards from Auguste Rodin's The Thinker. His professional papers are archived at the library there. Justice Brandeis was responsible for making the law school one of only thirteen Supreme Court repositories in the nation. The school's principal law review publication, the Brandeis Law Journal, is likewise named in his honor. The law school's Louis D. Brandeis Society awards the Brandeis Medal.
  • Kibbutz Ein Hashofet (Hebrew: עין השופט) in Israel (founded 1937) is named after Louis D. Brandeis. "Ein Hashofet" means literally "Spring of the Judge". The name was chosen due to Brandeis' Zionism.
  • One of the buildings of Hillman Housing Corporation, a housing cooperative founded by the Amalgamated Clothing Workers of America, in the Lower East Side of Manhattan is named after him.
  • A New York City Public Schools high school, "Louis D. Brandeis High School", is named after the justice.
  • A private Jewish day-school in Lawrence, New York, the Brandeis School, is also named after the justice.
  • Brandeis Hillel Day School (a K-8 independent Jewish school with campuses in San Francisco, CA and San Rafael, CA) is named after Supreme Court Justice Louis Brandeis and Rabbi Hillel.
  • The Brandeis-Bardin Institute (in Simi Valley, near Los Angeles) is a Jewish educational outreach resource.
  • Louis D. Brandeis High School (San Antonio, Texas) is also named after him. Brandeis became the ninth Justice so honored within the Northside Independent School District, which names all of its high schools for Supreme Court Justices.
  • Brandeis Elementary School in his hometown of Louisville, KY, also bears his name.

Selected opinions

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See also

Notes

  1. ^ a b c d e f g h i j k l m n o p q r s t u v w x y z aa ab ac ad ae Klebanow, Diana, and Jonas, Franklin L. People's Lawyers: Crusaders for Justice in American History, M.E. Sharpe (2003)
  2. ^ a b c d e f g h i Vile, John R. Great American Judges: an Encyclopedia, ABC-CLIO (2003)
  3. ^ a b c d e f g h i j k l m n o p q r Mason, Thomas A. Brandeis: A Free Man's Life, Viking Press (1946)
  4. ^ a b c d e Strum, Philippa. Louis D. Brandeis: Justice for the People, Harvard Univ. Press (1984)
  5. ^ a b c McCraw, Thomas K. Prophets of Regulation, Harvard Univ. Press (1984)
  6. ^ Jefferson National Expansion Memorial
  7. ^ a b c d e Lief, Alfred. Brandeis: The Personal History of an American Ideal, Stackpole Sons (1936)
  8. ^ a b Brandeis, Louis. The Opportunity in the Law, Harvard University Press (1911)
  9. ^ a b Warren and Brandeis, The Right To Privacy, 4 Harvard Law Review 193 (1890)
  10. ^ a b c d e McIntosh, Wayne V., Judicial Entrepreneurship: the Role of the Judge in the Marketplace of Ideas, Greenwood Publishing (1997)
  11. ^ a b c d Piott, Steven L. American Reformers, 1870 - 1920, Rowman & Littlefield (2006)
  12. ^ a b Brandeis, Louis. The Regulation of Competition Versus the Regulation of Monopoly, address to the Economic Club of New York on November 1, 1912
  13. ^ Bruce, Will M. Classics of Administrative Ethics, Westview Press (2001)
  14. ^ a b Chernow, Ron. The House of Morgan: An American Banking Dynasty and the Rise of Modern Finance, Grove Press (2001)
  15. ^ Brandeis, Louis. Opportunity in the Law, address delivered May 4, 1905, before the Harvard Ethical Society
  16. ^ a b c Douglas, William O. "Louis Brandeis: Dangerous Because Incorruptible" Book review of Justice on Trial, New York Times, July 5, 1964
  17. ^ New York Times, "Brandeis to Teach Roads Without Pay," Nov. 30, 1910
  18. ^ a b Weller, John L., The New Haven Railroad: its Rise and Fall, Hastings House (1969)
  19. ^ Brandeis, Louis. The Brandeis Brief, Muller v. Oregon (208 US 412)
  20. ^ Powers, Stephen, and Rothman, Stanley. The Least Dangerous Branch?: Consequences of Judicial Activism, Smith College, Greenwood Publishing Group (2002)
  21. ^ Link, Albert S. Wilson: the New Freedom, Princeton Univ. Press (1953)
  22. ^ a b Brandeis, Louis. Other People's Money - and How the Bankers Use It, (1914) complete text from Louis D. Brandeis School of Law
  23. ^ Urofsky, Melvin I. "The Value of ‘Other People’s Money’", New York Times, February 7, 2009
  24. ^ a b Todd, Alden L. Justice on Trial: The Case of Louis D. Brandeis, McGraw-Hill (1964)
  25. ^ New York Times, May 9, 1916, "President Urges Brandeis on Senate", letter reprinted in article
  26. ^ Green, John Raeburn. The Supreme Court, the Bill of Rights, and the States, 97 Univ. of Pennsylvania Law Review, 608, 630 (1949)
  27. ^ Gilbert v. Minnesota, Decided Dec. 13, 1920, full text
  28. ^ Gormley, Ken, and Richardson, ElliotArchibald Cox: Conscience of a Nation‎, Da Capo Press, (1999)
  29. ^ Lewis, Anthony. Make No Law: The Sullivan case and the First Amendment, Random House, (1991)
  30. ^ Olmstead v. United States, 277 U.S. 438 (1928), complete text including dissent
  31. ^ Finkelman, Paul. Encyclopedia of American Civil Liberties, CRC Press, (2006)
  32. ^ Griswold v. Connecticut, 381 U.S. 479 (1965)
  33. ^ Roe v. Wade, 410 U.S. 113 (1973)
  34. ^ Gordon, John Steele. "The Economic Contradictions of Obama-ism", Commentary magazine, April, 2009, pgs.23-26
  35. ^ Dawson, Nelson L. ed., Brandeis and America, Univ. Press of Kentucky (1989)
  36. ^ a b c Brandeis, Louis. "The Jewish Problem: How To Solve It", Speech given at a conference of Rabbis, April 25, 1915
  37. ^ Jewish Virtual Library, Louis Brandeis.
  38. ^ The Economist, Sept. 24, 2009 ("Books and Arts" section)
  39. ^ Harper, John Lamberton. American Visions of Europe Cambridge Univ. Press (1996)
  40. ^ "Brandeis' Stamp Of Approval Recognized", WLKY.com, Oct. 21, 2009
  41. ^ U.S.Postal Service Press Release, new Brandeis commemorative stamp announced, Dec. 2008
  42. ^ Louis D. Brandeis memorial at Find a Grave.

References

Selected works by Brandeis

  • The Brandeis Guide to the Modern World, Alfred Lief, editor (Boston: Little Brown & Co., 1941)
  • Brandeis on Zionism, Solomon Goldman, editor (Washington, D.C.: Zionist Organization of America, 1942)
  • Business, a Profession, Ernest Poole, editor (Boston, MA: Small, Maynard, 1914)
  • The Curse of Bigness, Osmond K. Fraenkel, editor (New York, NY: Viking Press, 1934)
  • The Words of Justice Brandeis, Solomon Goldman, editor (New York, N.Y.: Henry Schuman, 1953)
  • Other People's Money and How the Bankers Use It (New York, NY: Stokes, 1914)
  • Melvin I. Urofsky & David W. Levy, editors, Half Brother, Half Son: The Letters of Louis D. Brandeis to Felix Frankfurter (University of Oklahoma Press, 1991)
  • Melvin I. Urofsky, editor, Letters of Louis D. Brandeis (State University of New York Press, 1980)
  • Melvin I. Urofsky & David W. Levy, editors, Letters of Louis D. Brandeis (State University of New York Press, 1971-1978, 5 vols.)
  • Melvin I. Urofsky & David W. Levy, editors, The Family Letters of Louis D. Brandeis (University of Oklahoma Press, 2002)
  • Louis Brandeis & Samuel Warren "The Right to Privacy," 4 Harvard Law Review 193-220 (1890-91)
  • "The Living Law," 10 Illinois Law Review 461 (1916)
  • "The Opportunity in the Law," 39 American Law Review 555 (1905)

Books about Brandeis

  • Jack Grennan, Brandeis & Frankfurter: A Dual Biography (New York, N.Y.: Harper & Row, 1984)
  • Gerald Berk, Louis Brandeis and the Making of Regulated Competition, 1900-1932 (Cambridge University Press, 2009)
  • Alexander M. Bickel, The Unpublished Opinions of Mr. Justice Brandeis (Cambridge, MA: Harvard University Press, 1957)
  • Robert A. Burt, Two Jewish Justices: Outcasts in the Promised Land (Berkeley, CA: University of California Press, 1988)
  • Nelson L. Dawson, editor, Brandeis and America (Lexington, KY: University Press of Kentucky, 1989)
  • Jacob DeHaas, Louis D. Brandeis, A Biographical Sketch (Blach, 1929)
  • Felix Frankfurter, editor, Mr. Justice Brandeis (New Haven, CT: Yale University Press, 1932)
  • Ben Halpern, A Clash of Heroes: Brandeis, Weizman, and American Zionism (New York, N. Y.: Oxford University Press, 1986)
  • Samuel J. Konefsky, The Legacy of Holmes & Brandeis: A Study in the Influence of Ideas (New York, N.Y.: Macmillan Co., 1956)
  • Alfred Lief, Brandeis: The Personal History of an American Ideal (New York, N.Y.: Stackpole Sons, 1936)
  • Alfred Lief, editor, The Social & Economic Views of Mr. Justice Brandeis (New York, N.Y.: The Vanguard Press, 1930)
  • Jacob Rader Marcus, Louis Brandeis (Twayne Publishing, 1997)
  • Alpheus Thomas Mason, Brandeis: A Free Man's Life (New York, N.Y.: The Viking Press, 1946)
  • Alpheus Thomas Mason, Brandeis & The Modern State (Princeton, N.J.: Princeton University Press, 1933)
  • Thomas McCraw, Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn (Cambridge, MA: Harvard University Press, 1984)
  • Ray M. Mersky, Louis Dembitz Brandeis 1856-1941: Bibliography (Fred B Rothman & Co; reprint ed., 1958)
  • Bruce Allen Murphy, The Brandeis/Frankfurter Connection: The Secret Activities of Two Supreme Court Justices (New York, N.Y.: Oxford University Press, 1982)
  • Lewis J. Paper, Brandeis: An Intimate Biography of one of America's Truly Great Supreme Court Justices (Englewood Cliffs, N.J.: Pretice-Hall, Inc., 1983)
  • Catherine Owens Peare, The Louis D. Brandeis Story (Ty Crowell Co., 1970)
  • Edward A. Purcell, Jr., Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America (New Haven, CN: Yale University Press 2000)
  • Philippa Strum, Brandeis: Beyond Progressivism (Lawrence, KS: University Press of Kansas, 1993)
  • Philippa Strum, editor, Brandeis on Democracy (Lawrence, KS: University Press of Kansas, 1995)
  • Philippa Strum, Louis D. Brandeis: Justice for the People (Cambridge, Mass.: Harvard University Press, 1988)
  • A.L. Todd, Justice on Trial: The Case of Louis D. Brandeis (New York, N.Y: McGraw-Hill, 1964)
  • Melvin I. Urofsky, A Mind of One Piece: Brandeis and American Reform (New York, N.Y., Scribner, 1971)
  • Melvin I. Urofsky, Louis D. Brandeis, American Zionist (Jewish Historical Society of Greater Washington, 1992) (monograph)
  • Melvin I. Urofsky, Louis D. Brandeis & the Progressive Tradition (Boston, MA: Little Brown & Co., 1981)
  • Melvin I. Urofsky, Louis D. Brandeis: A Life (Pantheon, 2009)[1]
  • Nancy Woloch, Muller v. Oregon: A Brief History with Documents (Boston, MA: Bedford Books, 1996)

Select articles

  • Bhagwat, Ashutosh A. (2004). "The Story of Whitney v. California: The Power of Ideas". in Dorf, Michael C. (ed.). Constitutional Law Stories. New York: Foundation Press. pp. 418–520. ISBN 1587785056. 
  • Blasi, Vincent (1988). "The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney v. California". William & Mary Law Review 29: 653. 
  • Bobertz, Bradley C. (1999). "The Brandeis Gambit: The Making of America’s 'First Freedom,' 1909-1931". William & Mary Law Review 40: 557. 
  • Brandes, Evan B. (2005). "Legal Theory and Property Jurisprudence of Oliver Wendell Holmes, Jr. and Louis D. Brandeis: An Analysis of Pennsylvania Coal Company v. Mahon". Creighton Law Review 38: 1179. 
  • Collins, Ronald; Skover, David (2005). "Curious Concurrence: Justice Brandeis’s Vote in Whitney v. California". Supreme Court Review 2005: 1–52. 
  • Collins, Ronald; Friesen, Jennifer (1983). "Looking Back on Muller v. Oregon". American Bar Association Journal 69: 294–298, 472–477. 
  • Erickson, Nancy (1989). "Muller v. Oregon Reconsidered: The Origins of a Sex-Based Doctrine of Liberty of Contract". Labor History 30: 228–250. doi:10.1080/00236568900890161. 
  • Farber, Daniel A. (1995). "Reinventing Brandeis: Legal Pragmatism For the Twenty-First Century". U. Ill. L. Rev. 1995: 163. 
  • Frankfurter, Felix (1916). "Hours of Labor and Realism in Constitutional Law". Harvard Law Review 29 (4): 353–373. doi:10.2307/1326686. 
  • Freund, Paul A. (1957). "Mr. Justice Brandeis: A Centennial Memoir". Harvard Law Review 70: 769. 
  • Spillenger, Clyde (1996). "Elusive Advocate: Reconsidering Brandeis as People’s Lawyer". Yale Law Journal 105 (6): 1445. doi:10.2307/797295. 
  • Spillenger, Clyde (1992). "Reading the Judicial Canon: Alexander Bickel and the Book of Brandeis". Journal of American History 79 (1): 125–151. doi:10.2307/2078470. 
  • Urofsky, Melvin I. (2005). "Louis D. Brandeis: Advocate Before and On the Bench". Journal of Supreme Court History 30: 31. doi:10.1111/j.1059-4329.2005.00096.x. 
  • Urofsky, Melvin I. (1985). "State Courts and Protective Legislation during the Progressive Era: A Reevaluation". Journal of American History 72 (1): 63–91. doi:10.2307/1903737. 
  • Vose, Clement E. (1957). "The National Consumers' League and the Brandeis Brief". Midwest Journal of Political Science 1 (3/4): 267–290. doi:10.2307/2109304. 

Shorter Mention

  • Mirsky, Yehudah "Zionism, Ethics and the New Birth of Freedom: Louis Brandeis, Then and Now [2], "Jewcy/Zeek", August 18, 2009


Further reading

  • Abraham, Henry J. (1992). Justices and Presidents: A Political History of Appointments to the Supreme Court (3rd ed.). New York: Oxford University Press. ISBN 0-19-506557-3. 
  • Cushman, Clare (2001). The Supreme Court Justices: Illustrated Biographies, 1789–1995 (2nd ed.). (Supreme Court Historical Society, Congressional Quarterly Books). ISBN 1568021267. 
  • Frank, John P. (1995). Friedman, Leon; Israel, Fred L.. eds. The Justices of the United States Supreme Court: Their Lives and Major Opinions. Chelsea House Publishers. ISBN 0791013774. 
  • Hall, Kermit L., ed (1992). The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press. ISBN 0195058356. 
  • Martin, Fenton S.; Goehlert, Robert U. (1990). The U.S. Supreme Court: A Bibliography. Washington, D.C.: Congressional Quarterly Books. ISBN 0871875543. 
  • Urofsky, Melvin I. (1994). The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing. pp. 590. ISBN 0815311761. 
  • Urofsky, Melvin I. (2009). Louis D. Brandeis: A Life. New York: Pantheon. pp. 976. ISBN 0375423664. 

External links

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Legal offices
Preceded by
Joseph Rucker Lamar		 Associate Justice of the Supreme Court of the United States
June 5, 1916–February 13, 1939		 Succeeded by
William O. Douglas
 
Supreme Court of the United States
The White Court
Chief Justice: Edward Douglass White (1910–1921)
1916–1921: J. McKenna | O.W. Holmes | Wm. R. Day | W. Van Devanter | M. Pitney | J.C. McReynolds | L.D. Brandeis | J. H. Clarke
The Taft Court
Chief Justice: William Howard Taft (1921–1930)
1921–1922: J. McKenna | O.W. Holmes | Wm. R. Day | W. Van Devanter | M. Pitney | J.C. McReynolds | L.D. Brandeis | J.H. Clarke
1922: J. McKenna | O.W. Holmes | Wm. R. Day | W. Van Devanter | M. Pitney | J.C. McReynolds | L.D. Brandeis | Geo. Sutherland
1923–1925: J. McKenna | O.W. Holmes | W. Van Devanter | J.C. McReynolds | L.D. Brandeis | Geo. Sutherland | P. Butler | E.T. Sanford
1925–1930: O.W. Holmes | W. Van Devanter | J.C. McReynolds | L.D. Brandeis | Geo. Sutherland | P. Butler | E.T. Sanford | H.F. Stone
The Hughes Court
Chief Justice: Charles Evans Hughes (1930–1941)
Feb–Mar 1930: O.W. Holmes | W. Van Devanter | J.C. McReynolds | L.D. Brandeis | Geo. Sutherland | P. Butler | E.T. Sanford | H.F. Stone
Jun 1930–1932: O.W. Holmes | W. Van Devanter | J.C. McReynolds | L.D. Brandeis | Geo. Sutherland | P. Butler | H.F. Stone | O.J. Roberts
1932–1937: W. Van Devanter | J.C. McReynolds | L.D. Brandeis | Geo. Sutherland | P. Butler | H.F. Stone | O.J. Roberts | B.N. Cardozo
1937–1938: J.C. McReynolds | L.D. Brandeis | Geo. Sutherland | P. Butler | H.F. Stone | O.J. Roberts | B.N. Cardozo | H. Black
1938: J.C. McReynolds | L.D. Brandeis | P. Butler | H.F. Stone | O.J. Roberts | B.N. Cardozo | H. Black | S.F. Reed
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