Louis D. Brandeis

Louis D. Brandeis (1856-1941) was a highly influential American lawyer and theorist of Antitrust during the Progressive Era. He was a leading liberal on the Supreme Court (1916-1939), and a leader of the Zionist movement.

Early career

Brandeis was born in Louisville, Kentucky, on Nov. 13, 1856, the son of German-Jewish intellectuals who had come to the United States following the abortive revolutions of 1848. 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.

Privacy

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.

Progressive

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.

Brandeis Brief

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. In 1907, he introduced a new type of legal document, the "Brandeis brief,", 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."

Monopolies

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.

Zionism

With the outbreak of [[World War I] in 1914, Brandeis turned his attention to the problems of Jewish persecution, and he soon emerged as the chief figure in the American Zionist movement. But 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 and in securing U.S. support for the Balfour Declaration. But in 1921 he resigned from the Zionist Organization of America in protest against European methods and philosophies.

Supreme Court

Brandeis' friendship with Wilson had almost brought him into the cabinet in 1913, but objections from conservative businessmen prevented that appointment. 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. Senate hearings dragged on for four months before the appointment was finally confirmed, on June 1, 1916.

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, time and again declared innovative government measures unconstitutional, Brandeis urged his colleagues to lay aside what he regarded as their prejudices. He did join them in overthrowing key new deal laws, especially the NRA, which violated Brandeis' insistence on the primacy of competition. In the "Oklahoma Ice Case", he noted the great powers of the courts to disallow legislation. "But, in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold."

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.

Bibliography

• Mason, Alpheus T. Brandeis: A Free Man's Life (1946), is the authorized biography. online edition
• Strum, Philippa. Louis D. Brandeis: Justice for the People (1989)
• Strum, Philippa. Brandeis: Beyond Progressivism (1995) excerpt and text search
• Urofsky, Melvin I. Louis D. Brandeis and the Progressive Tradition (1981) online edition

Primary sources

• 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 (1971- 1978).
• Brandeis, Louis D. Business--A Profession (1914)
• Alfred Lief, ed. The Social and Economic Views of Mr. Justice Brandeis (1930)

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