BRANDEIS, LOUIS DEMBITZ

BRANDEIS, LOUIS DEMBITZ (1856–1941), U.S. jurist, the first Jew to be appointed to the U.S. Supreme Court.

Early Years

Brandeis was born in Louisville, Kentucky, the youngest of four children of Adolph and Frederika Dembitz Brandeis. His parents, both of whom were born in Prague, came of old and cultivated Jewish families with a deep interest in European liberalism. Apprehensive of political repression and economic distress after the failure of the 1848 revolutions, both families immigrated to America. Although they had formed the romantic idea of turning to a life of farming, they were dissuaded by Adolph, who had come in advance to explore the possibilities of life in the new country. After a short stay in Marion, Indiana, where a business venture did not prosper, the families moved to Louisville. There Adolph established a grain and produce business which proved highly successful until the depression of the early 1870s.

Louis early showed himself to be a remarkable student. He was brought up in a family environment that cultivated intellectual achievement and spiritual sensibility but in which formal religious training was eschewed. Louis' mother explained this aspect of her children's education: "I wanted to give them something that neither could be argued away or would have to be given up as untenable, namely, a pure spirit and the highest ideals as to morals and love. God has blessed my endeavors." Louis especially admired an uncle, Lewis *Dembitz, a scholarly lawyer and author in Louisville, sometimes known as "the Jewish scholar of the South," who was to become a follower of Theodor Herzl and an active Zionist. In honor of his uncle, Louis changed his middle name from David to Dembitz.

Following his graduation from high school at 15, and after the family business was dissolved because of financial reverses, Louis accompanied his parents in 1872 on an extended trip to Europe. During 1873–75 he attended the Annen Realschule in Dresden. Although he found the demands of the classroom rewarding, the repressive discipline of the place was distasteful. He was eager to return home. "In Kentucky," he said, "you could whistle." On his return, influenced by his uncle's career, Louis entered Harvard Law School. Supported by loans from his older brother and earnings from tutoring fellow students, he completed the course before his 21st birthday with an academic record unsurpassed in the history of the school.

Law Career

Brandeis formed a law partnership in Boston with a former classmate, and by the age of 30 he had achieved financial independence, thanks both to the success of his legal practice and to a deliberately frugal style of living. This simplicity came to be shared and abetted by his wife, Alice, daughter of Joseph Goldmark, a noted Viennese scientist. The wedding ceremony was performed in 1891 by her brother-in-law Felix *Adler, founder of the Ethical Culture Society.

In appearance Brandeis was a figure at once compassionate and commanding – tall, spare, ascetic, with deep-set, dark, penetrating eyes. Many who saw him thought of Lincoln. President Franklin Roosevelt spoke of him as "Isaiah."

As a lawyer Brandeis devoted himself increasingly to public causes and to the representation of interests that had not theretofore enjoyed such powerful advocacy: the interests of consumers, investors, shareholders, and taxpayers. He became known in Boston as the "People's Attorney." When Woodrow Wilson was elected president in 1912 on a platform of the New Freedom, he turned to Brandeis for counsel in translating ideas of political and social reform into the framework of legal institutions. In 1916 Wilson nominated Brandeis as a justice of the Supreme Court, precipitating a contest over confirmation in the Senate that lasted more than four months. The conservatives in that body were unprepared for a nomination to the Court so deeply innovative: the nominee was a Jew, and he was a lawyer of reformist bent. Standing firm against great pressure to withdraw the nomination, Wilson insisted that he knew no one better qualified by judicial temperament as well as legal and social understanding, and confirmation was finally voted on June 1, 1916.

Jewish and Zionist Activities

Brandeis' involvement in Jewish affairs began only a few years before his appointment to the Court. He had never disavowed the faith of his fathers and had contributed to Jewish philanthropies, but his concerns had been overwhelmingly secular. In 1911, he recounted, his interest in Judaism was stirred by two experiences. One was his service as mediator in the New York garment workers' strike, in an industry dominated on both sides by Jews of humble origin in Eastern Europe. He found a strong sense of kinship with these people, who were remarkable not only for their exceptional intelligence but above all for a rare capacity to see the issues from the other side's point of view. The other experience was a meeting with Jacob *De Haas, then editor of the Jewish Advocate in Boston, who had served as Herzl's secretary in London. De Haas was thoroughly familiar with the accomplishments of Lewis Dembitz in Kentucky, and excited in the nephew a new interest in Jewish history and particularly in the Zionist movement. Brandeis, as was his habit, read everything on the subject that De Haas could furnish, footnotes as well as text, De Haas said, and became convinced that, so far from bringing a threat of divided loyalties, American and Zionist ideals reinforced each other. "My approach to Zionism," he said, "was through Americanism. In time, practical experience and observation convinced me that Jews were by reason of their traditions and their character peculiarly fitted for the attainment of American ideals. Gradually it became clear to me that to be good Americans we must be better Jews, and to be better Jews we must become Zionists. Jewish life cannot be preserved and developed," he asserted, "assimilation cannot be averted, unless there be established in the fatherland a center from which the Jewish spirit may radiate and give to the Jews scattered throughout the world that inspiration which springs from the memories of a great past and the hope of a great future."

Brandeis' rise to leadership in the movement was rapid. When war broke out in 1914 and certain leaders of the World Zionist Organization moved to America, Brandeis consented to serve as chairman of the Provisional Committee for General Zionist Affairs. He supported the convening of an American Jewish Congress representing all important Jewish groups in the country to give the widest support to Jewish interests at the peace conference. He thereby brought himself into conflict with eminent non-Zionists in the United States. His close relations with President Wilson and high administrative officials played an important part in securing support for the *Balfour Declaration, and later for the British Mandate, with adequate boundaries.

Conflict within the Zionist Movement

A turning point in Brandeis' leadership developed out of his relationship with Chaim *Weizmann. The two met for the first time in London in the summer of 1919, when Brandeis was making a trip to Paris, site of the peace conference, and then to Palestine. In Palestine he was exhilarated by the spirit of the settlers but distressed by the debilitating prevalence of malaria and by the lack of business methods and budgetary controls in the handling of Zionist funds. He insisted that priority be given to remedying these physical and financial troubles. In the summer of 1920, at a meeting of the World Zionist Conference in London, Brandeis sought agreement on a plan to concentrate Zionist activity on the economic upbuilding of Jewish settlement in Palestine and to conduct that activity with efficiency and in accordance with sound financial principles. He proposed a small executive body that would include Weizmann and several men of great business experience, including Sir Alfred Mond and James de Rothschild, together with Bernard Flexner, an American lawyer, and others to be co-opted with the aid of Lord Reading. Weizmann was at first attracted to the plan because of the new strength it would give to the movement; but when he found his old colleagues from Eastern Europe offended because of their exclusion from the executive, he felt the tug of divided loyalties and expressed misgivings to Mond and de Rothschild, who withdrew because of the prospect of internal strife.

Brandeis was deeply disturbed by these developments and decided that he could not accept responsibility for the work of the World Organization; he consented to continue as honorary president only when persuaded that his withdrawal would have serious implications for the safety of the Jews in Eastern Europe. In June 1921, at a convention of American Zionists, the controversy brought serious repercussions. Many delegates had strong ties of loyalty to Weizmann and other Eastern European leaders, and shared Weizmann's view that the financial autonomy Brandeis desired for the American organization would weaken the strength of the World Organization. When a majority of the delegates refused a vote of confidence to Brandeis' position, he resigned from any position of responsibility, although not from membership in the organization. In this action he was joined by his principal supporters, including Julian W. Mack, Rabbi Stephen S. Wise, Felix Frankfurter, and Robert Szold.

The ardor of Brandeis' commitment, however, did not slacken. He inspired the organization of the Palestine Cooperative Company, which became the *Palestine Economic Corporation, to work in the investment field on projects that could become self-supporting, and the establishment of the Palestine Endowment Fund to administer bequests and trust funds primarily for projects not expected to yield a financial return. Brandeis contributed generously of his spirit and fortune. In his will the largest bequest was to the Zionist cause. He continued to receive frequent calls for counsel, which he would give, consistent with his judicial office, generally in the form of searching questions that would clarify the problem for the inquirer's own good judgment.

Supreme Court

In his judicial career, as in his Zionist activity, Brandeis was preeminently a teacher and moralist. His important judicial opinions are magisterial in character, notable not merely for their solid craftsmanship and analytical power but for their buttressing with data drawn from history, economics, and the social sciences. At a time when a majority on the Court was striking down new social legislation, Brandeis (together with his colleague Justice Holmes) powerfully insisted that the U.S. Constitution did not embody any single economic creed, and that to curtail experiment in the social sciences, no less than in the natural sciences, was a fearful responsibility. Not only did Brandeis vote to sustain such measures as minimum wage laws, price control laws, and legislation protecting trade unions against injunctions in labor disputes; his dissenting opinions in these cases served to illuminate their basis in experience and in social philosophy. These controversies arose under the vague constitutional standard of "due process of law."

Another notable category of cases concerned the distribution of governmental powers between the national government and the states. Brandeis believed that the American federal system was designed to encourage diffusion and sharing of power and responsibility, so he was receptive to the claims of the several states to engage in experimental legislation unless Congress itself had plainly exercised authority over the subject matter. Deeply convinced that responsibility is the greatest developer of men, and that even in the ablest of men the limits of capacity are soon reached, he regarded the dispersal of power within a continental domain to be both a moral imperative and a practical necessity.

In one important field Brandeis saw a duty incumbent on the Court to be less hospitable to legislative intervention: the area of freedom of thought and expression. Only when speech constituted a genuinely clear and imminent danger to public order would he uphold its suppression. He believed that "the greatest menace to freedom is an inert people;… that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones" (Whitney v. California, 274, U.S. Reports 357, 375 (1927)). By the time of his retirement in 1939, he saw the Court well on its way to the adoption of the positions he had for so long taken in dissent.

bibliography:

J. Goldmark, Pilgrims of 48 (1930); A.T. Mason, Brandeis: A Free Man's Life (1946); J. De Haas, Louis D. Brandeis (1929); O.K. Fraenkel (ed.), Curse of Bigness: Miscellaneous Papers of Louis D. Brandeis (1934); E. Stern, Embattled Justice (1971); M. Urofsky, A Mind of One Piece, Brandeis and American Reform (1971); Y. Shapiro, in: ajhsq, 55 (1965/66), 199–211; E. Rabinowitz, Justice Louis D. Brandeis, the Zionist Chapter of His Life (1968); A. Friesel, Ha-Tenuah ha-Ẓiyyonit be-Arẓot ha-Berit ba-Shanim 1897–1914 (1970), index; E. Stern, Embattled Justice (1971). add. bibliography: M.I. Urofsky and D.W. Levy (eds.), Letters of Louis D. Brandeis, 5 vols. (1971–78); idem, Half Brother, Half Son: The Letters of Louis D. Brandeis to Felix Frankfurter (1991); idem, Family Letters of Louis D. Brandeis (2002); G. Teitelbaum, Justice Louis D. Brandeis: A Bibliography of Writings and Other Materials on the Justice (1988); M.I. Urofsky, Louis D. Brandeis (1981); idem, Louis D. Brandeis and the Progressive Tradition (1981); N.L. Dawson, Louis D. Brandeis, Felix Frankfurter and the New Deal (1980).

[Paul A. Freund]

Brandeis, Louis Dembitz

WORKS BY BRANDEIS

SUPPLEMENTARY BIBLIOGRAPHY

Louis Dembitz Brandeis (1856–1941) was born in Louisville, Kentucky. His parents had migrated in 1848 from Bohemia to the United States, where his father became a prosperous grain merchant. Neither of his parents had participated in the European revolutions of 1848, but they had suffered from the severity with which the revolutions were crushed. Finding in America the freedom Europe had denied them, Brandeis’ parents passed on their liberal views to their son.

Brandeis’ family had no formal religious affiliation and no racial–cultural interests, such as knowledge of Hebrew and the Talmud, and his friends were both Jew and gentile; nevertheless, in 1912 he became a Zionist. During his years on the United States Supreme Court (1916–1939), all his extrajudicial activities and interests were curtailed, but his belief in Zionism never faltered, and in the years immediately preceding his death, Zionism again became a matter of absorbing interest to him.

His mother and his uncle, Lewis Dembitz, a Kentucky lawyer and scholar of uncompromising integrity, were influential in shaping his moral and intellectual standards. In 1891 Brandeis married Alice Goldmark of New York, who encouraged his public welfare crusades. Brandeis credited his wife with reinforcing his determination to carry on when critics bitterly assailed him as a radical who waged war on cherished economic institutions.

Brandeis was educated at private and public schools in Louisville, at the Annen Realschule in Dresden, Germany, in 1874 and 1875, and at the Harvard Law School, from which he received his LL.B. degree in 1877. He was admitted to the St. Louis bar in 1878. After a few months there he returned to Boston, practicing first with his friend and Harvard Law School classmate, Samuel Dennis Warren, and later as partner in the firm Brandeis, Dunbar, and Nutter.

Brandeis began his professional and public career just as the free enterprise system was beginning to crystallize into a structure of corporate and supercorporate monopolies. As a corporation lawyer, Brandeis drew his clients primarily from the ranks of big business. He became a millionaire by 1907 and a multimillionaire by 1915. For a while he was welcome in high financial and professional circles, as well as among “Proper Bostonians.” Early in his professional career, charitable and other good causes engaged his attention and imagination, as was conventional among Boston’s financial and social elite. What distinguished Brandeis’ reformism from that of other public-spirited citizens was his invariable habit of coupling disclosures of evil with specific proposals for their remedy.

His inventive genius is reflected in the so-called sliding-scale utility rate, the savings bank life insurance plan, and the preferential union shop. The sliding scale, adopted in Boston, permitted profit sharing between the utility company and the consumer and provided a bilateral bonus for efficiency. As the dividend to stockholders rose, the selling price of gas to the consumer fell. Savings bank life insurance, available in Massachusetts, New York, and Connecticut, provides an alternative to high-priced commercial insurance to those with low incomes. The preferential union shop was prescribed by Brandeis in 1910 for the New York garment industry as a more palatable substitute for the open shop, which had been making it difficult for the garment union to grow.

Public attention was first drawn to Brandeis in 1897, when he appeared before the Massachusetts legislature to urge that the Boston Elevated Rail-road Company be curbed in its drive for monopoly and privilege. Other campaigns of the same kind brought him prominence both in the state and nationally. Undertaken without fee, these activities soon won for him the title, “people’s attorney.” Driving him on was the conviction that bigness and monopoly are inimical to efficiency, true laissez-faire, and democracy.

Brandeis saw the rise of the masses, organized in trade unions and other social groups, as the natural outcome of a changed and changing social order. Power was moving from the few to the many. It was not informed statesmanship to try to freeze privilege or to thwart change indiscriminately; neither was it desirable or safe to stand aloof from the struggle. The reformer’s role was to guide the forces of social experimentation and thus to direct change along the lines of evolution rather than of revolution.

This approach is exhibited in Brandeis’ argument in support of hours-of-labor and minimum-wage legislation. In 1908, after the Supreme Court had denied the possibility of establishing a factual relationship between poor health and long hours of employment in a bakery, he prepared, with the help of his sister-in-law, Josephine Goldmark, of the National Consumers’ League, the famous “Brandeis brief” (Brandeis 1908). Only a few pages were devoted to the law; much factual data, foreign and domestic, was amassed to demonstrate that the Oregon legislature, when it enacted an hours-of-labor law for women, could reasonably have believed that a relationship existed between long hours and the health of the workers. In recent years this kind of brief has become the lawyer’s stock in trade. Though factual exploration was characteristic of all Brandeis’ public welfare activities, he recognized that facts alone furnish no panaceas. They are primarily helpful—indeed indispensable—in sharpening the questions to be asked and in choosing the methods to be followed in fashioning a cure.

In 1912 Brandeis became a sort of one-man brain trust for Woodrow Wilson in the New Jersey governor’s successful bid for the presidency. Wilson seriously considered Brandeis for a cabinet post, but the public image of him as a radical made the choice seem politically ill-advised. In January 1916, President Wilson appointed Brandeis associate justice of the Supreme Court, stimulating the fiercest protest ever lodged against a nominee for the high bench. After five months of debate the Senate confirmed the appointment by a vote of 47 to 22.

Brandeis brought to his judicial task a precise technical knowledge of constitutional issues, and an informed political outlook based on long study and experience in practical affairs. Except when basic freedoms were involved, he took a latitudinarian view of the power to govern. At a time when the constitution had become for reactionary judges an instrument for preserving the status quo, it was for him, as for Woodrow Wilson, a “vehicle of the nation’s life” (Wilson [1908] 1917, p. 158).

There must be power in the States and the Nation to remold, through experimentation, our economic practices and institutions to meet changing social and economic needs. … To stay experimentation in things social and economic is a grave responsibility.… This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious or unreasonable. … 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. (New State Ice Company v. Liebmann, 285 U.S. 262, 1932, p. 311)

Few men live to see their ideas become realities, their views accepted, their philosophy enacted and upheld as the law of the land. That reward did come to Brandeis. By the time of his death, the scope of government action had been enlarged as judicially created barriers against the government’s power to regulate the economy were erased. However, in another respect the government’s power had been limited: Brandeis had joined Oliver Wendell Holmes, Benjamin Cardozo, Harlan F. Stone, and Charles Evans Hughes in laying the foundation for the assertion of judicial responsibility for a “fundamental principle of the American Government,’ the protection of freedom of speech, press, and assembly. “Those who won our independence by revolution,” Brandeis had written in 1919, “were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. . . . Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom” (Whitney v. California, 274 U.S. 357, 1927, p. 377).

Brandeis retired in 1939 and died in his Washington apartment in 1941, in surroundings more modest than he had known at the start of his life. Although he had never held political office or employed the techniques of politics or partisan organization, he had used his skills as a lawyer, publicist, and judge to promote change through the use of informed reason and the orderly processes of law. In cases involving government action to curb espionage and other alleged subversive activities, he upheld a man’s freedom to think as he will and to speak as he thinks as “indispensable to the discovery and spread of political truth” (Whitney v. California, 274 U.S. 357, 1927, p. 375). This, he believed, was the only effective path to freedom and security.

Alpheus Thomas Mason

[For the historical context of Brandeis’ work, seeJudiciary; Welfare state; and the biographies ofCardozo; Holmes; Pound. For discussion of the subsequent development of Brandeis’ ideas, seeConstitutional law.]

WORKS BY BRANDEIS

(1908) 1912 Women in Industry: Decision of the United States Supreme Court in Curt Miller v. State of Oregon. Pages 558–563 in Josephine C. Goldmark, Fatigue and Efficiency: A Study in Industry. New York: Charities Publication Committee.

(1913–1914) 1933 Other People’s Money and How the Bankers Use It. Washington: National House Library Foundation. → First published in Harper’s Weekly.

(1914) 1933 Business: A Profession. Boston: Hale, Cushman & Flint.

1934 The Curse of Bigness: Miscellaneous Papers of Louis D. Brandeis. New York: Viking.

1942 Brandeis on Zionism: A Collection of Addresses and Statements. Washington: Zionist Organization of America.

SUPPLEMENTARY BIBLIOGRAPHY

Goldmark, Josephine C. 1912 Fatigue and Efficiency: A Study in Industry. New York: Charities Publication Committee.

Mason, Alpheus T. 1946 Brandeis: A Free Man’s Life. New York: Viking. → Contains a list of Brandeis’ major writings, as well as of books published about him.

Mersky, Roy M. 1958 Louis Dembitz Brandeis, 1856–1941: A Bibliography. Yale Law Library Publications, No. 15. New Haven: Yale Law School.

Wilson, Woodrow (1908)1917 Constitutional Government in the United States. New York: Columbia Univ. Press.

BRANDEIS, LOUIS DEMBITZ

The appointment of Louis Brandeis (1856–1941) to the U.S. Supreme Court made him the first Jewish Supreme Court Associate Justice in the nation's history. Before his appointment, Brandeis led a varied and successful professional life as a public advocate, a progressive lawyer, and a Zionist. Brandeis served the nation's highest court from 1916 until his retirement in 1939.

Louis Dembitz Brandeis was born November 13, 1856, in Louisville, Kentucky. His parents, Adolph and Frederika Dembitz Brandeis, were Czechoslovakian refugees who fled the failed liberal Revolution of 1848. Brandeis was raised in a family atmosphere that was intellectual, open-minded, progressive, and dedicated to freedom. This had positive impact on his character throughout his life.

Adolph Brandeis was a prosperous grain merchant. Although Louis attended public schools in Louisville, his father's wealth enabled him to spend three years in Germany where he studied at the Annen Realschule in Dresden. At the age of 18, Brandeis entered Harvard Law School, where he completed a three-year program in two years. He graduated with the highest grades received to that date in the law school's history.

After a brief period in St. Louis, Missouri, Brandeis returned to Boston in 1879 and soon established a profitable law practice. He argued and won his first U.S. Supreme Court case in 1889 on behalf of the Wisconsin Central Railroad. He also became known as "the people's lawyer" because of his pro bono (without pay) advocacy in cases involving the public interest.

In 1890 Brandeis and his former partner Samuel Warren jointly published a path-breaking article in the Harvard Law Review, "The Right to Privacy." From

the bench, Brandeis would later support this new legal concept which his article helped promote.

By the mid-1890s Brandeis's law practice was earning more than $70,000 a year, an enormous amount by the standards of the day. In 1891 Brandeis married his second cousin, Alice Goldmark, and the two dedicated themselves to public service. Through their frugal living and careful investments, they became millionaires before 1900. As their wealth grew, so did their generosity. Between 1905 and 1939, they gave away approximately $1.5 million.

In 1908, arguing before the Supreme Court in Muller vs. Oregon, Brandeis defended the constitutionality of an Oregon statute limiting the labor of women in factories to ten hours a day. In a precedent-setting brief, he included a mass of legislative and statistical data relating to the condition of women in industry along with his legal arguments. As a result, the court was forced to consider its decision in light of both the law and contemporary economic reality. Brandeis's brief became a legal model for those lawyers, judges, and social welfare proponents who were determined to humanize industrial working conditions. Associate Supreme Court Justice Felix Frankfurter wrote several years later, "The Muller case is epoch-making, not because of its decision [the Court upheld the Oregon statute], but because of the authoritative recognition by the Supreme Court that the way in which Mr. Brandeis presented the case . . . laid down a new technique for counsel charged with the responsibility of arguing such constitutional questions, and an obligation upon courts to insist upon such method of argument before deciding the issue."

Before Muller, Brandeis had tried for years to minimize what writer and sociologist Thorstein Veblen called "the discrepancy between law and fact." The law, Brandeis argued, often did not correspond to the economic and social circumstances in America. The danger, he said, was that "a lawyer who has not studied economics and sociology is very apt to become a public enemy."

Brendeis spent ten years acting as counsel for persons advocating and defending progressive laws throughout the country. His work caught the attention of the current presidential administration. On January 28, 1916, President Woodrow Wilson (1856–1924) nominated Brandeis, then 59, to the U.S. Supreme Court. His activism, however, made confirmation difficult. Two years before his nomination, Brandeis had published two influential books: Other People's Money and How the Bankers Use It (1914) and Business, a Profession (1914). Both books were critical of business practices of the time, particularly those of investment bankers. For over four months the Senate Judiciary Committee heard heated testimony for and against Brandeis's nomination to the nation's highest court for more than four months. Some considered Brandeis's nomination to be a radical threat to the American legal system, but his appointment was finally confirmed by a 47 to 22 vote. The appointment broke an unwritten ban that had kept Jews from serving on the Supreme Court or in high positions of government.

Brandeis served on the high court through the Great Depression and post–World War I period. In his major judicial opinions Brandeis often concurred with the dissenting opinions of the great jurist Oliver Wendell Holmes. Many of their dissents were in defense of the First Amendment guarantees relating to freedom of speech. Following World War I (1914–1918), in several decisions upholding the Espionage Act of 1918, the Court, with only Justices Holmes and Brandeis dissenting, denied the right of free speech based on the argument that certain statements or opinions might provoke violent acts. For example, in Abrams v. United States, the Court upheld a 20-year jail sentence imposed on five Russian immigrants who had published two booklets protesting U.S. actions in their native land. The booklets contained a few quoted phrases from the Communist Manifesto. The Court, again with Brandeis in dissent, also held that pacifism on religious grounds was a legitimate cause for barring U.S. citizenship to an individual.

In a famous dissent from the New State Ice Company of Oklahoma City vs. Liebman, Brandeis summed up his philosophy: "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the state law, which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious or unreasonable. 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."

Justice Brandeis resigned from the Supreme Court in February 1939. He died in 1941.

See also: Liberalism

FURTHER READING

Abraham, Henry J. Justices and Presidents: A Political History of Appointments to the Supreme Court. 2d ed. New York: Oxford University Press, 1985.

Bates, Ernest Sutherland. The Story of the Supreme Court. Indianapolis: Bobbs Merrill, 1938.

Burt, Robert A. Two Jewish Justices: Outcasts in the Promised Land. Berkeley and Los Angeles: University of California Press, 1988.

Konefsky, Samuel J. The Legacy of Holmes and Brandeis: A Study in the Influence of Ideas. New York: The Macmillan Company, 1956.

Mason, Alpheus Thomas. Brandeis: A Free Man's Life. New York: Viking Press, 1946.

Strum, Philippa. Brandeis: Beyond Progressivism. Lawrence, Kan.: University Press of Kansas, 1993.

Oklahoma City vs. Liebman, 1932">

it is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

louis brandeis, new state ice company of oklahoma city vs. liebman, 1932

BRANDEIS, LOUIS DEMBITZ

Louis Dembitz Brandeis's lifelong commitment to public service and social reform earned him the epithet the People's Lawyer. His twenty-three years on the Supreme Court were characterized by a deep respect for civil liberties and by an abiding distrust of centralized power in the hands of business and government.

Brandeis was famous for his prodigious intellect and his well-crafted, detailed dissents. He was a man of principle who enhanced the image of the legal profession by living up to his belief that lawyers should possess "the moral courage in the face of financial loss and personal ill-will to stand for right and justice."

Brandeis was born November 13, 1856, in Louisville, Kentucky, the youngest of four children of Adolph Brandeis and Fredericka Dembitz Brandeis. His parents were refined and well-to-do immigrants who left Prague, then part of Bohemia, in 1849. A brilliant student, Brandeis excelled in the public schools in Louisville. He also attended the Annen-Realschule, in Dresden, Germany, during his family's 1873–75 pilgrimage to Europe.

Although Brandeis did not have a college degree, he was admitted into Harvard Law School and graduated at the top of his class in 1877. Brandeis had an obvious passion for law and he considered the years at Harvard among the happiest in his life. His ties to the university were strengthened further in 1886 when he became one of the founders of the influential Harvard Law Review. Brandeis and Samuel D. Warren wrote a legendary article, "The Right to Privacy," in the December 1890 issue of the Review. It previewed Brandeis's Supreme Court opinions asserting privacy as a constitutionally guaranteed right.

After a year of graduate work Brandeis moved to St. Louis in 1878 to begin a law practice. He soon missed the intellectual stimulation of the East Coast and moved back to Boston, where he began a successful law practice with Warren. Their large firm had an impressive clientele and made Brandeis wealthy, although money held little interest for him. As he established himself professionally, Brandeis socialized with Boston's intellectual elite. In 1891, he married Alice Goldmark, a distant cousin, with whom he had two daughters.

Brandeis zealously embraced the ideals of the Progressive movement of the early twentieth century. He proved his dedication to social reform by serving as unpaid counsel in several public interest cases. Brandeis was one of the first U.S. lawyers to offer pro bono services (free legal services for people unable to afford an attorney). Along with a passionate belief in the virtue of volunteer legal work, Brandeis had a sense of fairness that compelled him to compensate his firm for any time spent in public service.

Brandeis worked without a fee to fight monopolistic streetcar franchises in Boston and to improve the questionable practices of life insurance companies. One of his most satisfying achievements was the creation of a savings bank plan that enabled people to obtain life insurance at reasonable rates. Brandeis also argued for the constitutionality of maximum hour and minimum wage laws.

In 1914, Brandeis published Other People's Money—and How the Bankers Use It, a denunciation of trusts and investment banking. The book helped inspire important antitrust legislation and earned the antipathy of many U.S. bankers and businesspeople.

"Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficient."
—Louis Brandeis

Brandeis also created a new style of legal writing, appropriately called the Brandeis brief.

With his sister-in-law Josephine Goldmark, of the National Consumer's League, Brandeis produced the first legal brief to include copious supporting data. For Muller v. State of Oregon, 208 U.S. 412, 28 S. Ct. 324, 52 L. Ed. 551 (1908), Brandeis wrote more than one hundred pages in favor of an Oregon state law mandating a maximum ten-hour workday for women. Later, when asked for an appropriate title for the seminal Muller brief, Brandeis replied, What Any Fool Knows. In the document, he described the deleterious physical and mental effects on women of extended periods of manual labor. He included references to sociology, psychology, history, politics, employment statistics, and economics; this method of amassing data from several different disciplines to persuade the court became popular with other lawyers. The legal principles of the case were discussed in about two pages.

In 1916 Brandeis was appointed by President woodrow wilson to fill the associate justice seat vacated by Joseph R. Lamar. Brandeis thus became the first Jewish American to be nominated for the High Court. His Senate confirmation hearing was a bitter, drawn-out affair because of business's fierce opposition to him and his progressive politics. Anti-Semitism was also an element in the extended, four-month proceedings. Despite virulent criticism from insurance and banking officials, Brandeis was confirmed by the Senate, 47–22.

As a Supreme Court justice, Brandeis is remembered for his eloquent dissents, often joined by colleague oliver wendell holmes jr. Brandeis's dissents frequently signaled how the Court would rule in future cases. For example, his 1928 dissent in olmstead v. united states, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944, anticipated the reasoning and outcome of a Supreme Court case heard years later.

In Olmstead, Brandeis objected to the nearly unrestricted use of government wiretaps. Although the Olmstead majority approved state wiretapping unless a physical trespass was involved, Brandeis considered wholesale eavesdropping unconstitutional. In his view it violated the fourth amendment, prohibiting unreasonable government searches, and the fifth amendment, forbidding the deprivation of liberty without due process. Brandeis argued that the right to be left alone was guaranteed by the Constitution.

Almost forty years later, his views on privacy were adopted in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). In Katz, relying heavily on Brandeis's reasoning, the Court overturned Olmstead, ruling that government

wiretaps were permissible only if they met procedural requirements of the Fourth Amendment.

Despite his own clear convictions, Brandeis refused to declare a law unconstitutional simply because he disagreed with it. Particularly in economic matters, Brandeis exercised judicial restraint by deferring to Congress and its legislative power.

Brandeis was an ardent defender of civil liberties. Throughout his career, he strongly urged the Court to use the fourteenth amendment to apply the bill of rights to the states. In particular, Brandeis declared that laws abridging free speech and assembly must be challenged if no emergency exists to justify them. Unless speech causes clear and imminent danger, it is unreservedly protected.

Although Brandeis was a nonobservant Jew, he was a respected leader of the American Zionist movement. From 1914 to 1921, Brandeis gave his name and public support to the movement to create a Jewish state in Palestine. In his later years Brandeis advised President franklin d. roosevelt on the establishment of a Jewish homeland and the boycott of German products.

Brandeis retired from the Court on February 13, 1939. He died at age eighty-four, on October 5, 1941.

Brandeis was honored in 1948 when a new institution of higher learning was named after him. Brandeis University is a private, Jewish-sponsored, coeducational college in Waltham, Massachusetts. The nonsectarian school offers both undergraduate and graduate degrees.

further readings

Baskerville, Stephen W. 1994. Of Laws and Limitations: An Intellectual Portrait of Louis Dembitz Brandeis. Rutherford: Fairleigh Dickinson Univ. Press.

Bracey, Christopher A. 2001. "Louis Brandeis and the Race Question." Alabama Law Review 52 (spring): 859–910.

Goodhart, Arthur L. 2000. Five Jewish Lawyers of the Common Law. Union, N.J.: Lawbook Exchange.

Schroeder, Mary Murphy. 2000. "The Brandeis Legacy." San Diego Law Review 37 (summer): 711–23.

Strum, Philippa S. 1999. "The Unlikely Radical: After a Violent Strike Shattered Louis Brandeis' Assumptions About the Legal System, He Transformed His Practice and Became the Country's Most Influential Public Interest Advocate." American Lawyer 21 (December): 42.

cross-references

Antitrust Law; "Brief for the Defendant in Error, Muller v. Oregon" (Appendix, Primary Document); Electronic Surveillance; Olmstead v. United States; Privacy; Wiretapping.

Louis Brandeis

Born: November 13, 1856
Louisville, Kentucky
Died: October 5, 1941
Washington, D.C.
American Supreme Court justice

Louis Brandeis was a lawyer who dedicated his life to public service, earning the nickname the "people's attorney." As an associate justice of the U.S. Supreme Court, he tried to balance the developing powers of modern government and society with the defending of individual freedoms.

Early life and education

Louis Dembitz Brandeis was born on November 13, 1856, in Louisville, Kentucky, to Adolph and Fredericka Dembitz Brandeis. His parents were Bohemian Jews who had come to America after the revolutionary movement of 1848 to create an independent Bohemia failed and was crushed by Austria. The Brandeis family was educated, and they believed in strengthening the processes of democracy in order to protect the common man's dignity and right to self-development.

Brandeis lived and studied in Europe for three years after graduating from Louisville public schools at the age of fifteen. In 1875, at the age of eighteen, Brandeis entered Harvard Law School without a college degree, achieving one of the most outstanding records in the school's history. At the same time he tutored fellow students in order to earn money, which was necessary because of business losses suffered by his father. Although Brandeis was not the required age of twenty-one, the Harvard Corporation passed a special resolution granting him a bachelor of law degree in 1877. After another year of legal study at Harvard, he was allowed to practice law.

Years of public service

In 1879 Brandeis began a partnership with his classmate Samuel D. Warren. Together they wrote one of the most famous law articles in history, "The Right to Privacy," published in the December 1890 Harvard Law Review. In it Brandeis stated the view he later repeated in the Supreme Court case of Olmstead v. United States (1928): he argued that the makers of the Constitution, as evidence of their effort to protect Americans, intended for people to have "the right to be let alone … the right most valued by civilized men." During this stage of his career, Brandeis spent much time helping the Harvard Law School. Though he declined an offer to become an assistant professor, in 1886 he helped found the Harvard Law School Association, a group of alumni (graduates of the school), and he served for many years as its secretary.

By 1890 Brandeis was earning good money as a lawyer and was able to serve, without pay, in support of various public causes. When a fight arose, for example, over preservation of the Boston subway system, he helped save it. He also helped lead the opposition to the New Haven Railroad's attempt to remain the sole provider of transportation in New England. He worked to change Massachusetts' liquor laws in an attempt to prevent liquor dealers from bribing lawmakers rather than complying with the laws. The Massachusetts State Legislature's adoption of a savings-bank life insurance system was the result of his investigation of the problems of existing insurance programs.

Brandeis also took part in the effort to bring legal protections to industrial workers, and as part of this effort he contributed a major idea to the Supreme Court legal process. In 1908, while defending an Oregon law that established fair wages and hours for women laborers, Brandeis introduced what came to be known as the "Brandeis brief." In the brief he took into consideration the various factors that had led to the passing of the law. Many lawyers followed the Brandeis brief. In their arguments they presented scientific evidence and expert opinion on the social problems of the day that were reflected in court cases.

Appointment to the Supreme Court

President Woodrow Wilson (1856–1924) offered Brandeis a position in his Cabinet in 1913, but the Boston lawyer preferred to remain simply a counselor to the president. Brandeis continued his investigations into the growing concentration of wealth in large corporations and such effects on democracy. In 1914 he published Other People's Money, and How the Bankers Use It, in which he set down his views in opposition to corporate growth.

Wilson's nomination of Brandeis to the Supreme Court on January 28, 1916, started a dirty political fight. Six former presidents of the American Bar Association and former president of the United States William Howard Taft (1857–1930) criticized Brandeis for his "radical" (extreme) political views. Some anti-Semitism (prejudice against Jewish people) was involved, as Brandeis was the first Jew ever nominated for America's highest court. Finally, however, the fight was won in the Senate, and Brandeis took his seat on June 5, 1916, where he served with distinction until his retirement on February 13, 1939.

Brandeis often joined his fellow justice Oliver Wendell Holmes Jr. (1841–1935) in disagreeing with the Court's willingness to make judgments about fiscal (economic) and social policy that opposed those of individual states. Also with Holmes Brandeis bravely defended civil liberties throughout this era. When he did approve of wide use of state powers, it was only in the interest of furthering individual self-fulfilment. He also rejected the ability of states to infringe upon (take away from) a citizen's liberty. Two examples are the Olmstead case, which involved wiretapping, and Whitney v. California, in which Brandeis opposed a California law prohibiting free speech.

Personal interests

Brandeis married Alice Goldmark in 1891, and they had two daughters. Part of his personal life was his commitment to fellow Jews. He became a leading supporter of the movement to develop an independent Jewish nation in Palestine. Another of Brandeis's great interests was the building up of strong regional schools as a means of strengthening local areas against the threat of national control of education. To this end, beginning in 1924, he helped plan and develop the law school and general library of the University of Louisville.

Brandeis died on October 5, 1941. His commitments to justice, education, and Judaism were honored several years later in the founding of Brandeis University in Waltham, Massachusetts.

For More Information

Freedman, Suzanne. Louis Brandeis: The People's Justice. Springfield, NJ: Enslow, 1996.

Gal, Allon. Brandeis of Boston. Cambridge, MA: Harvard University Press, 1980.

Strum, Philippa. Louis D. Brandeis: Justice for the People. Cambridge, MA: Harvard University Press, 1984.