Louis Brandeis

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Louis Dembitz Brandeis
Associate Justice of the United States Supreme Court
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	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 grew up 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. 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 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 1 Early life 1.1 Family roots 1.2 Family life 1.3 Childhood education 1.4 Law school 2 Early career in law 2.1 First law firm: Warren and Brandeis 2.1.1 Acting as business advisor 2.1.2 Setting moral standards 2.2 Creating a Right to Privacy 2.3 New phase as public lawyer 3 Personal life and marriage 4 Becoming a public advocate 4.1 Against monopolies 4.2 Against powerful corporations 4.3 Against public corruption 4.4 Against mass consumerism 5 Becoming the "People's Lawyer" 5.1 Developing new life insurance system 5.2 Preventing J.P. Morgan's railroad monopoly 5.3 Upholding workplace laws with the "Brandeis Brief" 6 Supporting President Wilson 6.1 Helping form the Federal Reserve Act 6.2 Helping create the Federal Trade Commission (FTC) 7 Supreme Court Justice 7.1 Confirmation debate 7.2 Leading cases 7.2.1 Gilbert v. Minnesota (1920) - Freedom of speech 7.2.2 Whitney v. California (1927) - Freedom of speech 7.2.3 Olmstead v. United States (1928) - Right of privacy 7.2.4 Packer Corporation v. Utah (1932) - Captive audience and free speech 7.3 Roosevelt's New Deal era 7.3.1 Louisville v. Radford (1935) - limiting presidential discretion 7.3.2 Erie Railroad Co. v. Tompkins (1938) - Federal verses state laws 8 Zionist leader 9 Death and legacy 10 Namesake institutions 11 Selected opinions 12 See also 13 Notes 14 References 14.1 Selected works by Brandeis 14.2 Books about Brandeis 14.3 Select articles 14.4 Shorter Mention 15 Further reading 16 External links

[edit] Early life

[edit] 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 Hapsburg 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 neigbors in Louisville. "Kentucky was one of its many battlegounds, ... and his family was firmly in the antislavery camp."^[1]:57

[edit] 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

[edit] 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 school 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]

[edit] 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

[edit] Early career in law

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

[edit] 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]

[edit] 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]

[edit] 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

[edit] 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]

[edit] 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.

[edit] Personal life and marriage

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."

[edit] 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]

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

[edit] 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]

[edit] 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]

[edit] 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. According to Lief, "One alderman alone had found work in this way for 200 of his followers."^[7]:70 Lief adds that "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]

"Always the moralist," writes Brandeis 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 in the Glavis-Ballinger case of 1910:

"They government officials 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 . . . even at the risk of their positions"^[13]:251

His influence in this area continued years after he died: after World War II, for instance, President 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

[edit] 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 "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.' . . . The consumer was not Brandeis's ideal American. . . [and was] repelled by the flaunting materialism ... in America, [and] denounced conspicuous consumption."^[5]:107 But as McCraw adds, by doing so, "he drifted imperceptibly into an attack on consumer preference, a principle that lies at the very core of a market economy."

[edit] Becoming the "People's Lawyer"

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]

[edit] 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

[edit] 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," write Klebanow and Jonas. Among them, the Massachusetts Supreme Court ruled that New Haven had acted illegally during earlier acquisitions. He also met twice with President Theodore Roosevelt, who convinced the U.S. Department of Justice to file suit, in 1908, against New Haven for antitrust violations. And according to Weller, at a 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," note Klebanow and Jonas. 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 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." "For the House of Morgan," writes historian Ron Chernow, "Louis Brandeis was more than just a critic, he was an adversary of almost mythical proportion."^[14]:379

[edit] 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

[edit] Supporting President Wilson

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

[edit] 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

[edit] 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]

[edit] Supreme Court Justice

[edit] 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 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 10, 1916, the Senate officially confirmed his nomination by a vote of 47 to 22. 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]

[edit] Leading cases

[edit] 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."

[edit] 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. . . "

[edit] 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 let 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]

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

In Packer Corporation v. Utah, 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"

[edit] 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.

[edit] 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, 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

[edit] Erie Railroad Co. v. Tompkins (1938) - Federal verses state laws

His last important judicial opinion was also one of the most significant of his career, according to Klebanow and Jonas. The case dealt with the issue of whether federal judges are free to pass judgment based on "general law" where the parties to a lawsuit are from different states. Speaking for the Court, Brandeis overruled the ninety-six-year-old doctrine of Swift v. Tyson, and insisted that there was no such thing as a "federal general common law." Therefore, federal courts must apply the law of the state where the injury occurred. "This ruling," conclude 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]

[edit] 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]

[edit] 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.

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.” And former Justice William O. Douglas wrote, “he helped America grow to greatness by the dedications of which he made his life.”

[edit] 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.^[39] 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.

[edit] Selected opinions

• Ashwander v. Tennessee Valley Authority (1936) (concurring)
• Erie Railroad Co. v. Tompkins (1938) (majority)
• Gilbert v. Minnesota (1920) (dissenting)
• New State Ice Co. v. Liebmann (1932) (dissenting)
• Olmstead v. United States (1928) (dissenting)
• Ruthenberg v. Michigan (1927) (unpublished dissent)
• Sugarman v. United States (1919) (majority)
• United States ex rel Milwaukee Social Democratic Publishing Co. v. Burleson (1921) (dissenting)
• Whitney v. California (1927) (concurring)
• The Collected Supreme Court Opinions of Louis D. Brandeis
• Pennsylvania Coal Co. v. Mahon (1922) (dissenting)
• Loughran v. Loughran (1934) (majority)

[edit] See also

[edit] Notes

[edit] References

[edit] 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.)
• 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)

[edit] Books about Brandeis

[edit] Select articles

[edit] Shorter Mention

[edit] Further reading

[edit] External links

Wikiquote has a collection of quotations related to: Louis Brandeis

Wikimedia Commons has media related to: Louis Brandeis

• Fox, John, Capitalism and Conflict, Biographies of the Robes, Louis Dembitz Brandeis. Public Broadcasting System.
• Louis Brandeis at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center.
• Harvard University Library Open Collections Program. Women Working, 1870-1930, Louis Brandeis (1846-1941). A full-text searchable online database with complete access to publications written by Louis Brandeis.
• University of Louisville, Louis D. Brandeis School of Law Library - Louis D. Brandeis Collection

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
Awards and achievements
Preceded by Dwight W. Morrow	Cover of Time Magazine 19 October 1925	Succeeded by William S. Sims

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

Persondata
NAME	Brandeis, Louis Dembitz
ALTERNATIVE NAMES
SHORT DESCRIPTION	American Supreme Court Justice
DATE OF BIRTH	November 13, 1856
PLACE OF BIRTH	Louisville, Kentucky
DATE OF DEATH	October 5, 1941
PLACE OF DEATH	Washington, D.C.