|Former Associate Justice of the U.S. Supreme Court
From: June 1, 1916 – February 13, 1939
|William O. Douglas
Louis Dembitz Brandeis (1856-1941) was a highly influential American lawyer and theorist of Antitrust during the Progressive Era. As an advisor to President Woodrow Wilson, he was a driving force in the passage of the Federal Reserve Act, the Clayton Antitrust Act, and the law establishing the Federal Trade Commission. Appointed to the Supreme Court in 1916, he was the leading liberal on the Court (1916-1939), a proponent of small business and an enemy of bigness, and a leader of the Zionist movement to build up Israel.
He was a strong advocate of Natural Rights and freedom of speech. He graduating from Harvard Law School in 1877, were he co-wrote the famous article "The Right to Privacy," in 1890. As a leading lawyer in Boston he supported the union movement, women's rights and an increase in the minimum wage; he fought monopolistic railroads. In 1916 he was appointed to the United States Supreme Court, and was confirmed despite strong conservative opposition. He served until 1939. Although a supporter of government intervention and some of Franklin Roosevelt's New Deal he opposed bigness and argued that the National Recovery Administration was unconstitutional. He is most famous for opposing big business and defining the right to privacy. Brandeis is also the namesake of Brandeis University.
Brandeis was born in Louisville, Kentucky, on Nov. 13, 1856, the son of German-Jewish intellectuals who fled Prague following the abortive revolutions of 1848. The family was active in Republican politics. His parents were secular and Brandeis was not active in religious affairs. After schooling both in the United States and in Germany, Brandeis entered Harvard Law School in 1875, where he entered into the dialectics of the new case system of instruction, inaugurated by Professor Christopher C. Langdell. After graduation in 1877 and an additional postgraduate year, Brandeis started practice in St. Louis, then moved to Boston to partner with classmate Samuel D. Warren; Warren & Brandeis opened in 1879. Within a few years their legal craftsmanship and social connections made the firm one of the most successful in New England. Brandeis offered his clients not only a brilliant legal mind, but sound and effective business advice, and by 1890, when the average income for lawyers was only $3,000 a year, Brandeis earned $50,000.
Brandeis defined modern notions of the individual right to privacy in a path-breaking article he published with his partner, Warren, in the Harvard Law Review of Dec. 15, 1890, on "The Right to Privacy." Stimulated by anger at offensive publicity concerning the social activities of Warren's family, it adumbrated a new legal concept that has had lasting influence. Building on diverse analogies in the law of defamation, of literary property, and of eavesdropping, Brandeis argued that the central, if unarticulated, interest protected in these fields was an interest in personal integrity, "the right to be let alone," that ought to be secured against invasion except for some compelling reason of public welfare.
His social conscience made Brandeis a leader of the Progressive Movement. From 1897 to 1916, he was in the thick of multiple reform crusades. He fought in Boston to secure honest traction franchises and in 1907 launched a six-year fight to prevent banker J. P. Morgan from monopolizing New England's railroads. After an expose of insurance fraud in 1906, he devised the Massachusetts plan to protect small wage-earners through savings bank life insurance. He supported the conservation movement and in 1910 emerged as the chief figure in the Pinchot-Ballinger investigation. Like many other progressives of his day, Brandeis was tired of outmoded 18th century conceptions of liberty.
During this flurry of reform, two central themes emerged in Brandeis' social philosophy. First, the law had to be responsive to changing social conditions and, while protecting individual and corporate rights, had to be flexible enough to permit governments to devise measures for the welfare and safety of their citizens.
Widely known as "the people's attorney," Brandeis pioneered pro bono work and was a true reformer. Brandeis was also the first to cite law reviews both in his briefs before the court and in his opinions as a justice. In 1907, he introduced a new type of legal document, the "Brandeis brief,", consisted of three pages of legal citations and over one hundred pages of citations to articles, government reports, and other references. It was packed full of social research and data to support a ten-hour limitation on women's working hours. Muller v. Oregon was the first decision by the Supreme Court admitting the need to examine the social conditions as well as the legal facts involved in a case. The second theme emphasized the need to regulate the economy so as to prevent the domination of both society and economy by enormous corporations. It was this idea that brought Brandeis to the attention of Democratic presidential nominee Woodrow Wilson in 1912, and together the two men developed the political program known as the "New Freedom."
Brandeis believed that big monopolies not only dominated industry, but undermined a democratic society. Political liberty demanded economic freedom, and each individual deserved the opportunity to make his mark in the world. To achieve this, big businesses had to be broken up, and rules enforced to guarantee fair competition. His book Other People's Money (1914) was a brilliant analysis of the influence of moneyed interests on the life of the average American. In 1913 and 1914, Brandeis was a key adviser to President Wilson in drafting and enacting the Federal Reserve Act, The Clayton Antitrust Act, and the Federal Trade Commission Act.
Brandeis was never religious, but after mediating strikes involving Jewish garment workers he became profoundly identified with his Jewish ethnic heritage and became committed to Zionism (that is, the creation of a national home in Palestine for all Jews from around the world). Brandeis, as of 1905, believed in total assimilation of Jews into American society, a position subsequently used by his opponents within the American Zionist movement to attack him personally. Brandeis moved 180 degrees from this position, believing by 1914 there was something separate and unique to the Jewish race, which was one of the reasons he wanted them to be relocated to The Promised Land, which was Palestine. He concluded that:
- "Assimilation is national suicide". There must be a land "where the Jewish life may be naturally led, the Hebrew language spoken, and the Jewish spirit prevail," and that land was "our fathers' land" -- Palestine.
With the outbreak of World War I in 1914, Brandeis turned his attention to the Jewish question. The headquarters of the World Zionist Organization was moved to the United States, and Brandeis became chairman of the operating committee and the central figure in the group. While favoring creation of a Jewish homeland, he also recognized that Jews had found freedom and opportunity in the United States and therefore urged that Palestine be considered a homeland only for those Jews who wanted to go there. Nonetheless, American Jews, because of their safety and prosperity, should help secure and build that homeland. From 1914 to 1919, Brandeis was instrumental in raising millions of dollars for relief of war-afflicted Jews. He secured President Wilson's support for the 1917 British Balfour Declaration, which promised a Jewish homeland (eventually Israel). In 1919 he broke on issues of structural organization and financial planning with Chaim Weizmann, the leader of European Zionism. Weizmann defeated Brandeis for power and in 1921 Brandeis resigned from the Zionist Organization of America, along with his closest associates Rabbi Stephen S. Wise, Judge Julian W. Mack and Felix Frankfurter. He remained active in philanthropy directed at Jews in Palestine. In the late 1930s he endorsed illegal immigration to Palestine in an effort to help European Jews escape genocide when Britain denied entry to more Jews.
Supreme Court nomination, 1916
Brandeis' friendship with Wilson had almost brought him into the cabinet in 1913 as Attorney General or Secretary of Commerce, but objections from conservative businessmen prevented that appointment. Brandeis was never a socialist but he had a reputation of favoring small business over big business, and cooperatives over small business. In January 1916, in a surprise move, Wilson nominated Brandeis to the Supreme Court. There was a national uproar over the appointment, with conservatives denouncing the move and a small group of anti-Semites bitterly predicting the end of the republic. One opponent explained that Brandeis "is of the material that makes good advocates, reformers and crusaders, but not good or safe judges." Brandeis accepted the nomination as vindication of his progressive views and Zionist beliefs, for which he had been sharply criticized. Brandeis saw the appointment as an opportunity to bring law into line with modern life. Senate hearings dragged on for four months; Brandeis said nothing, but quietly mobilized a battery of friends who refuted the numerous but ill-founded allegations against him. Even so, his confirmation was in doubt until Wilson finally saw the issue as one that pitted the president against Congress for control of the voice of the people. The president threw himself into the contest, appealing to public opinion by telling the nation:
- 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. I have dealt with him in matters where nice questions of honor and fair play, as well as large questions of justice and public benefit, were involved. In every matter in which I have made test of his judgment and point of view 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 his enemies.
Wilson did not speak to judicial philosophy. More to the point, Wilson counted votes and found out what it would take to turn around every Democratic senator, one by one. The strategy worked; all but one of the Democrats stood solid and Wilson gained three Progressive Republicans, so that Brandeis was confirmed 47-22 on June 1, 1916.
Supreme Court service, 1916-1939
Wilson continued to think of Brandeis as his personal advisor, and asked him to head a major diplomatic mission. Chief Justice Edward White vetoed the idea, saying the Court was too busy to allow such diversions. By 1918 Brandeis had become friends with Taft, and when Taft became chief justice in 1921, the firebrand liberal and traditional conservative managed to work well together.
Brandeis remained a friend of labor on the Court, but he proved much less radical than his opponents had feared. He upheld convictions for sedition during World War I, supported prohibition, and was best known for long, complex minority opinions that somewhat resembled his famous sociological briefs.
In his 23 years on the bench, Brandeis fought to protect individual liberties from encroachment by the state and to give states the right to protect the safety and welfare of their citizens. Although frequently in a minority, his dissenting opinions were later cited as correct interpretations.
Brandeis often teamed with Oliver Wendell Holmes to argue that in a democracy the right to criticize the government or to expound unpopular views could not be abridged. In Whitney v. California, he opposed state laws directed against socialist philosophies and reminded his colleagues that the founding fathers had not been afraid of new ideas. Like Holmes, Brandeis personally did not share the ideas of the radicals whose cases came before the Court, but to him democracy meant that all ideas, no matter how repugnant, could enjoy freedom of expression.
During the Great Depression, when the Court, dominated by economic conservatives dubbed the "Four Horsemen", time and again declared innovative government measures unconstitutional, Brandeis urged his colleagues to lay aside what he regarded as their prejudices. Brandeis returned to the political arena during the New Deal years, when, behind the scenes, he orchestrated the small-business ideology of supporters like Felix Frankfurter. He kept his own values intact and generally supported the New Deal, voting against it only three times, most notably overthrowing the NRA, which violated Brandeis' hatred of what he called the "curse of bigness."
Behind the scenes Brandeis was a major advisor to President Franklin D. Roosevelt and a group of New Dealers, led by his protegé Felix Frankfurter, who had a specific reform agenda, such as opposition to big business, support for wages and hours legislation, and support for labor unions. He helped design the Securities and Exchange Commission, which remains one of the two most important surviving New Deal agencies in the 21st century. Whenever a possible conflict of interest arose, Brandeis would recuse himself from a Court decision.
Brandeis was one of the greatest legal craftsman ever to sit on the Court. One of his enduring contributions was the view that cases must be decided on the basis not only of legal precedents but also of social needs.
Brandeis retired from the Court on Feb. 13, 1939, and died in Washington on Oct. 5, 1941.
- "The bow must be strung and unstrung . . . there must be time also for the unconscious thinking which comes to the busy man in his play."
- Letter to William Harrison Dunbar (February 2, 1893), reprinted in Letters of Louis D. Brandeis Volume I (1870–1907): Urban Reformer 109 (Melvin I. Urovsky & David W. Levy, eds., State University of New York Press 1971).
- "The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world . . . ."
- "The Right to Privacy," 4 Harvard L. Rev. 193, 196 (1890).
- "When a man feels that he cannot leave his work, it is a sure sign of an impending collapse."
- Letter to Alfred Brandeis (March 8, 1897), reprinted in Letters of Louis D. Brandeis Volume I 127 (Melvin I. Urovsky & David W. Levy, eds., State University of New York Press 1971).
- "What I have desired to do is to make the people of Boston realize that the most important office, and the one which all of us can and should fill, is that of private citizen. The duties of the office of private citizen cannot under a republican form of government be neglected without serious injury to the public."
- Statement to a reporter in the Boston Record, 14 April 1903. (quoted in Alpheus Thomas Mason, Brandeis: A Free Man's Life (1946), p. 122.)
- Commonly paraphrased as "The most important office is that of the private citizen" or "The most important political office is that of the private citizen", and sometimes mis-attributed to his dissenting opinion in Olmstead v. United States.
- 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.
- Other People's Money—and How Bankers Use It (1914).
- "It is, as a rule, far more important how men pursue their occupation than what the occupation is which they select."
- The Opportunity in the Law, 39 American Law Review 555, 555 (1905).
- "A man is a better citizen of the United States for being also a loyal citizen of his state, and of his city; for being loyal to his family, and to his profession or trade; for being loyal to his college or his lodge. . . . For only through the ennobling effect of its strivings can we develop the best that is in us and give to this country the full benefit of our great inheritance."
- The Jewish Problem And How to Solve It (1915).
- "We must make our choice. We may have democracy, or we may have wealth concentrated in the hands of a few, but we can't have both."
- As quoted by Raymond Lonergan in Mr. Justice Brandeis, Great American (1941), p. 42.
- "At the foundation of our civil liberty lies the principle which denies to government officials an exceptional position before the law and which subjects them to the same rules of conduct that are commands to the citizen."
- Dissent, Burdeau v. McDowell, 256 U.S. 465, 477 (1921).
- "[O]nly through participation by the many in the responsibilities and determinations of business can Americans secure the moral and intellectual development which is essential to the maintenance of liberty."
- Dissent, Liggett Co. v. Lee, 288 U.S. 517 (1933), at 580.
- "Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government."
- Concurring, Whitney v. California, 274 U.S. 357, 375 (1927), at 375. In this case, in which the Court upheld a California anti-Communist statute, Brandeis, writing in a concurrence joined by Justice Oliver Wendell Holmes, Jr., concurred in the judgment but not in the reasoning. Whitney was later overruled (with the later Court adopting Brandeis's reasoning) in Brandenburg v. Ohio, 395 U.S. 444 (1969).
- "Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears."
- Concurring, Whitney v. California, 274 U.S. 357, 376 (1927).
- "The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. 'That places the liberty of every man in the hands of every petty officer' was said by James Otis of much lesser intrusions than these. 1 To Lord Camden a far slighter intrusion seemed 'subversive of all the comforts of society.' Can it be that the Constitution affords no protection against such invasions of individual security?"
- Dissenting, Olmstead v. United States, 277 U.S. 438 (1928).
- Legal Science Static. Political as well as economic and social science noted these revolutionary changes. But legal science - the unwritten or judge-made laws as distinguished from legislation - was largely deaf and blind to them. Courts continued to ignore newly arisen social needs. They applied complacently 18th century conceptions of the liberty of the individual and of the sacredness of private property.
- The Living Law, Illinois Law Review, February 16, 1916
- Marc Eric McClure (2003). Earnest Endeavors: The Life and Public Work of George Rublee. Greenwood. p. 76. ISBN 9780313324093.
- Richard A. Epstein (2007). How Progressives Rewrote the Constitution. Cato Institute.
- Speech of November 8, 1914, before the Menorah Society of Columbia University, cited in Mason (1946) p 447
- Senator John D. Works, quoted in Levy and Murphy (1980) 78:1253
- Mason, (1946) p. 499
- Brandeis also wrote the opinion holding unconstitutional the Frazier-Lemke Act for the relief of farm debtors. Mason (1946) 619
- Baker, Leonard. Brandeis and Frankfurter: A Dual Biography (1984)
- Levy, David W. and Bruce Allen Murphy. "Preserving the Progressive Spirit in a Conservative Time: The Joint Reform Efforts of Justice Brandeis and Professor Frankfurter, 1916-1933," Michigan Law Review Vol. 78, No. 8 (Aug., 1980), pp. 1252–1304 in JSTOR
- Mason, Alpheus T. Brandeis: A Free Man's Life (1946), is the authorized biography. online edition
- Mason, Alpheus T. "Louis D. Brandeis" in Leon Friedman and Fred L. Israel, eds. The Justices of the United States Supreme Court: Their Lives and Major Opinions. Volume: 3. (1997), pp 1019–36 online edition
- Strum, Philippa. Louis D. Brandeis: Justice for the People (1989)
- Strum, Philippa, ed. Brandeis: Beyond Progressivism (1995), selected letters, speeches, opinions of Brandeis excerpt and text search
- Urofsky, Melvin I. Louis D. Brandeis: A Life (2009), full-scale scholarly biography
- Urofsky, Melvin I. Louis D. Brandeis and the Progressive Tradition (1981) online edition, short biography
- Urofsky, Melvin I. "Louis D. Brandeis: Advocate Before and on the Bench." Journal of Supreme Court History (2005) 30(1): 31-46. Issn: 1059-4329 Fulltext: Ebsco
Works by Brandeis
- The Living Law, Illinois Law Review, February 16, 1916
- Brandeis, Louis D. Brandeis on Zionism: A Collection of Addresses and Statements (1942). online edition
- Brandeis, Louis D. The Curse of Bigness: Miscellaneous Papers edited by Osmond K. Fraenkel, (1934);
- Brandeis, Louis D Letters of Louis D. Brandeis, edited by Melvin I. Urofsky and David W. Levy (5 vol, 1971-1978).
- Brandeis, Louis D. Business--A Profession (1914) full text online
- Brandeis, Louis D. Other People's Money and How the Bankers Use It (1914)
- Lief, Alfred, ed. The Social and Economic Views of Mr. Justice Brandeis (1930)
- Strum, Philippa, ed. Brandeis: Beyond Progressivism (1995) excerpt and text search