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{{Short description|US Supreme Court justice from 1916 to 1939}} |
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{{Infobox judge |
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{{Use American English|date = September 2019}} |
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| name = Louis Dembitz Brandeis |
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{{Use mdy dates|date=April 2024}} |
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| image = Brandeisl.jpg |
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{{Infobox officeholder |
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| imagesize = |
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| name = Louis Brandeis |
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| image = Brandeisl.jpg |
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| office = [[Associate Justice of the Supreme Court of the United States|Associate Justice of the United States Supreme Court]] |
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| office = [[Associate Justice of the Supreme Court of the United States]] |
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| termstart = June 1, 1916<ref name='fedjudcenter'>{{cite news | author= | coauthors= |authorlink= | title=Federal Judicial Center: Louis Brandeis | date=2009-12-12 | publisher= | url=http://www.fjc.gov/servlet/nGetInfo?jid=241&cid=999&ctype=na&instate=na | work = | pages = | accessdate = 2009-12-12 | language = }}</ref> |
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| nominator = [[Woodrow Wilson]] |
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| term_start = June 5, 1916<!--Term start date as per www.supremecourt.gov, reflects date oath taken--> |
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| nominator = [[Woodrow Wilson]] |
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| term_end = February 13, 1939<ref name=SCOTUSjustices>{{cite web| url=https://www.supremecourt.gov/about/members_text.aspx| title=Justices 1789 to Present| publisher=Supreme Court of the United States| location=Washington, D.C.| access-date=February 14, 2022| archive-date=April 15, 2010| archive-url=https://web.archive.org/web/20100415034624/https://www.supremecourt.gov/about/members_text.aspx| url-status=live}}</ref> |
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| appointer = |
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| predecessor = [[Joseph |
| predecessor = [[Joseph Lamar]] |
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| successor = [[William O. Douglas]] |
| successor = [[William O. Douglas]] |
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| birth_name = Louis David Brandeis |
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| birth_date = {{birth date|1856|11|13}} |
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| termstart2 = |
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| birth_place = [[Louisville, Kentucky]], U.S. |
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| termend2 = |
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| death_date = {{death date and age|1941|10|5|1856|11|13}} |
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| nominator2 = |
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| death_place = [[Washington, D.C.]], U.S. |
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| appointer2 = |
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| party = [[Republican Party (United States)|Republican]] (before 1912)<br>[[Democratic Party (United States)|Democratic]] (after 1912)<ref name="Marc Eric McClure 2003 76">{{cite book|author=Marc Eric McClure |title=Earnest Endeavors: The Life and Public Work of George Rublee|url=https://books.google.com/books?id=hh2WpPTG53sC&pg=PA76|year=2003|publisher=Greenwood|page=76|isbn=9780313324093|access-date=October 31, 2016|archive-date=February 1, 2021|archive-url=https://web.archive.org/web/20210201075354/https://books.google.com/books?id=hh2WpPTG53sC&pg=PA76|url-status=live}}</ref> |
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| predecessor2 = |
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| spouse = {{marriage|Alice Goldmark|1891}} |
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| successor2 = |
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| children = 2 |
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| birthdate = {{birth date|1856|11|13|mf=y}} |
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| education = [[Harvard Law School|Harvard University]] ([[LLB]]) |
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| deathdate = {{death date and age|1941|10|5|1856|11|13}} |
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| deathplace = [[Washington, D.C.]] |
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| spouse = Alice Goldmark |
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| religion = [[Judaism]] |
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| alma_mater = [[Harvard Law School]] |
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}} |
}} |
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{{liberalism US|jurists}} |
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'''Louis Dembitz Brandeis''' ({{IPA-en|ˈbrændaɪs|pron}}; November 13, 1856 – October 5, 1941) was an [[Associate Justice of the Supreme Court of the United States|Associate Justice]] on the [[Supreme Court of the United States]] from 1916 to 1939. He was born in [[Louisville, Kentucky|Louisville]], [[Kentucky]], to Jewish parents who had immigrated from Europe. He enrolled at [[Harvard Law School]], graduating at the age of twenty with the highest grade average in the college’s history. |
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'''Louis Dembitz Brandeis''' ({{IPAc-en|ˈ|b|r|æ|n|d|aɪ|s}}; November 13, 1856 – October 5, 1941) was an American lawyer who served as an [[Associate Justice of the Supreme Court of the United States|associate justice]] on the [[Supreme Court of the United States]] from 1916 to 1939. |
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Starting in 1890, he helped develop the "[[right to privacy]]" concept by writing a ''[[Harvard Law Review]]'' article of [[The Right to Privacy (article)|that title]],<ref>Samuel D. Warren & Louis D. Brandeis, ''The Right to Privacy'', 4 Harv. L. Rev. 193 (1890), ''available at'' [https://heinonline.org/HOL/P?h=hein.journals/hlr4&i=205 HeinOnline] {{Webarchive|url=https://web.archive.org/web/20211025160658/https://heinonline.org/HOL/P?h=hein.journals%2Fhlr4&i=205 |date=October 25, 2021 }}.</ref> and was thereby credited by legal scholar [[Roscoe Pound]] as having accomplished "nothing less than adding a chapter to our law." He was a leading figure in the antitrust movement at the turn of the century, particularly in his resistance to the monopolization of the New England railroad and advice to Woodrow Wilson as a candidate. In his books, articles and speeches, including ''[[Other People's Money and How the Bankers Use It]]'', and ''[[The Curse of Bigness]]'', he criticized the power of large banks, money trusts, powerful corporations, monopolies, public corruption, and mass consumerism, all of which he felt were detrimental to American values and culture. He later became active in the [[Zionist movement]], seeing it as a solution to [[antisemitism in Europe]] and [[Antisemitism in Russia|Russia]], while at the same time being a way to "revive sense of the Jewish spirit." |
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When his |
When his family's finances became secure, he began devoting most of his time to public causes, and he was later dubbed the "People's Lawyer."<ref>{{Cite web |title=About |url=https://www.brandeis.edu/about/louis-brandeis.html |access-date=November 16, 2022 |website=brandeis.edu |language=en |archive-date=October 13, 2022 |archive-url=https://web.archive.org/web/20221013023107/https://www.brandeis.edu/about/louis-brandeis.html |url-status=live }}</ref> He insisted on taking cases without pay so that he would be free to address the wider issues involved. ''[[The Economist]]'' magazine called him "A Robin Hood of the law."<ref>{{Cite news |title=Let's look at the facts |newspaper=The Economist |url=https://www.economist.com/books-and-arts/2009/09/24/lets-look-at-the-facts |access-date=November 16, 2022 |issn=0013-0613 |archive-date=November 16, 2022 |archive-url=https://web.archive.org/web/20221116011633/https://www.economist.com/books-and-arts/2009/09/24/lets-look-at-the-facts |url-status=live }}</ref> Among his notable early cases were actions fighting railroad monopolies, defending workplace and [[labor laws]], helping create the [[Federal Reserve System]], and presenting ideas for the new [[Federal Trade Commission]]. 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. |
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In 1916, President [[Woodrow Wilson]] nominated Brandeis to |
In 1916, President [[Woodrow Wilson]] [[Louis Brandeis Supreme Court nomination|nominated]] Brandeis to a seat on the [[Supreme Court of the United States]]. His nomination was bitterly contested, partly because, as Justice [[William O. Douglas]] later 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."<ref name="Douglas">{{cite news |last1=Douglas |first1=William O. |title=Louis Brandeis: Dangerous Because Incorruptible |url=https://www.nytimes.com/1964/07/05/archives/louis-brandeis-dangerous-because-incorruptible-justice-on-trial-the.html |work=The New York Times |date=July 5, 1964 |page=BR3 |access-date=October 4, 2020 |archive-date=February 25, 2021 |archive-url=https://web.archive.org/web/20210225234657/https://www.nytimes.com/1964/07/05/archives/louis-brandeis-dangerous-because-incorruptible-justice-on-trial-the.html |url-status=live }}</ref> On June 1, 1916, he was confirmed by the Senate by a vote of 47 to 22,<ref name="Douglas" /> to become one of the most famous and influential figures ever to serve on the high court. His 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 Supreme Court. Some have criticized Brandeis for evading issues related to African-Americans, as he did not author a single opinion on any cases about race during his twenty-three year tenure, and he consistently voted with the Supreme Court majority including in support of [[Racial segregation in the United States|racial segregation]]. |
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== |
==Early life== |
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=== Family roots === |
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Louis Dembitz Brandeis was born on November 13, 1856, in [[Louisville, Kentucky|Louisville]], [[Kentucky]], the youngest of four children. His parents, Adolph Brandeis 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 families for both economic and political reasons. The [[Revolutions of 1848]] had produced a series of political upheavals and the families, though "liberal in their political views and sympathetic to the rebel cause," were "shocked by the anti-Semitic riots that erupted in Prague while the city was in the hands of the Czech rebels."<ref name=Klebanow>Klebanow, Diana, and Jonas, Franklin L. ''People's Lawyers: Crusaders for Justice in American History'', M.E. Sharpe (2003)</ref>{{rp|55}} In addition, the [[Habsburg Empire]] had imposed business taxes on Jews. Family elders sent Adolph Brandeis to America to observe and prepare for his family's possible emigration. He spent a few months in the Midwest and was impressed by the nation's institutions and by the tolerance among the people he met. He wrote home to his wife, "America's progress is the triumph of the rights of man."<ref name=Klebanow/>{{rp|56}} |
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===Family roots=== |
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The Brandeis family chose to settle in Louisville partly because it was a prosperous river port. Louis's father developed a grain-merchandising business but suffered setbacks during the [[Panic of 1873|depression of the 1870s]].<ref name=Vile>Vile, John R. ''Great American Judges: an Encyclopedia'', ABC-CLIO (2003)</ref>{{rp|121}} His earliest childhood was also shaped by the [[American Civil War]], which forced the family to seek safety temporarily in Indiana. The Brandeis family held [[abolitionist]] beliefs that angered their Louisville neighbors.<ref name=Klebanow/>{{rp|57}} |
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Louis David Brandeis (later: Louis Dembitz Brandeis — see below) was born on November 13, 1856, in [[Louisville, Kentucky]], the youngest of four children. His [[Frankism|Frankist]] parents were immigrants from [[Lands of the Bohemian Crown|Bohemia]] (now in the [[Czech Republic]]), who raised him in a [[secular Jewish]] household.<ref>{{Cite web|title=Heroes – Trailblazers of the Jewish People|url=https://dbs.bh.org.il/luminary/brandeis-louis-dembitz|url-status=live|archive-url=https://web.archive.org/web/20191117100807/https://dbs.bh.org.il/luminary/brandeis-louis-dembitz|archive-date=November 17, 2019|access-date=November 17, 2019|website=Beit Hatfutsot}}</ref> |
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His parents, Adolph Brandeis and Frederika Dembitz, both of whom were [[Frankism|Frankist]] [[Jews]],<ref name="Arthur Mandel">Arthur Mandel, ''Militant Messiah, Or, the Flight from the Ghetto: the Story of Jacob Frank and the Frankist Movement'', Atlantic Highlands, NJ: Humanities Press, 1979, Chapter 22.</ref> {{Citation needed|reason=cite that the family was Frankist, not the story of Jacob Frank|date=November 2022}} immigrated to the United States from their childhood homes in [[Prague]], [[Kingdom of Bohemia|Bohemia]] (then part of the [[Austrian Empire]]). They emigrated as part of their extended families for both economic and political reasons. His extended family included [[Dante]] scholar [[Irma Brandeis]], whose father was Brandeis' second cousin.<ref>{{Cite news |last=Ahern |first=John |date=February 23, 1986 |title=BETWEEN THE LOVE OF CLIZIA AND MOSCA |language=en-US |work=The New York Times |url=https://www.nytimes.com/1986/02/23/books/between-the-love-of-clizia-and-mosca.html |access-date=July 14, 2022 |issn=0362-4331 |archive-date=September 9, 2022 |archive-url=https://web.archive.org/web/20220909121824/https://www.nytimes.com/1986/02/23/books/between-the-love-of-clizia-and-mosca.html |url-status=live }}</ref><ref>{{Cite book |last=Cary |first=Joseph |url=https://books.google.com/books?id=dJ-GL_WfdHgC&dq=Irma+Brandeis+father&pg=PA329 |title=Three Modern Italian Poets: Saba, Ungaretti, Montale |date=October 16, 1993 |publisher=University of Chicago Press |isbn=978-0-226-09527-1 |language=en |access-date=July 28, 2022 |archive-date=January 28, 2024 |archive-url=https://web.archive.org/web/20240128094729/https://books.google.com/books?id=dJ-GL_WfdHgC&dq=Irma+Brandeis+father&pg=PA329#v=onepage&q=Irma%20Brandeis%20father&f=false |url-status=live }}</ref> The [[Revolutions of 1848]] had produced a series of political upheavals and the families, though politically liberal and sympathetic to the rebels, were shocked by the antisemitic riots that erupted in Prague while the rebels controlled it.<ref name="Klebanow">Klebanow, Diana, and Jonas, Franklin L. ''People's Lawyers: Crusaders for Justice in American History'', M.E. Sharpe (2003)</ref>{{rp|55}} In addition, the [[Habsburg Empire]] had imposed business taxes on Jews. Family elders sent Adolph Brandeis to America to observe and prepare for his family's possible emigration. He spent a few months in the Midwest and was impressed by the nation's institutions and by the tolerance among the people he met. He wrote home to his wife, "America's progress is the triumph of the rights of man."<ref name="Klebanow" />{{rp|56}} |
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=== Family life === |
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The Brandeis family chose to settle in Louisville partly because it was a prosperous river port. His earliest childhood was shaped by the [[American Civil War]], which forced the family to seek safety temporarily in Indiana. The Brandeis family held [[Abolitionism in the United States|abolitionist]] beliefs that angered their Louisville neighbors.<ref name=Klebanow/>{{rp|57}} Louis's father developed a grain-merchandising business. Worries about the U.S. economy took the family back to Europe in 1872, but they returned in 1875.<ref name=Vile>Vile, John R. ''Great American Judges: An Encyclopedia'', ABC-CLIO (2003)</ref>{{rp|121}} |
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The Brandeises were considered a "cultured family," trying not to discuss business or money during dinner, preferring subjects related to history, politics, and culture, or 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 [[Robert Schumann|Schumann]].<ref name=Klebanow/> |
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===Family life=== |
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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. They celebrated the main Christian holidays along with most of their community,<ref name=Vile/> even treating Christmas as a [[secular]] holiday. His parents raised their children to be "high-minded idealists," rather than depending solely on religion for their purpose and inspiration.<ref name=Klebanow/> In later years, his mother, Frederika, wrote of this period: |
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The Brandeis family were considered a "cultured family", trying not to discuss business or money during dinner, preferring subjects related to history, politics, and culture, or their daily lives. 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]].<ref name=Klebanow/> |
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In their religious beliefs, although his family was Jewish, only his extended family practiced a more conservative form of Judaism, while his parents practiced the split-off movement of [[Frankism]].<ref name="Arthur Mandel" />{{Citation needed|reason=cite not the history of Frankism but that LB's family were Frankists|date=November 2022}} They celebrated the main Christian holidays along with most of their community,<ref name=Vile/> treating Christmas as a [[secular]] holiday. His parents raised their children to be "high-minded idealists" rather than depending solely on religion for their purpose and inspiration.<ref name=Klebanow/> In later years, his mother, Frederika, wrote of this period: |
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:"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."<ref name=Mason>Mason, Thomas A. ''Brandeis: A Free Man's Life'', Viking Press (1946)</ref>{{rp|28}} |
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{{blockquote|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.<ref name=Mason>Mason, Thomas A. ''Brandeis: A Free Man's Life'', Viking Press (1946)</ref>{{rp|28}} }} |
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According to biographer Melvin Urofsky, Brandeis was influenced greatly by his uncle Lewis Naphtali Dembitz. Unlike other members of the extended Brandeis family, Dembitz regularly practiced [[Judaism]] and was actively involved in [[Zionist]] activities. Brandeis later changed his middle name from David to Dembitz in honor of his uncle and, through his uncle's model of social activism, became an active member of the [[Zionist movement]] later in his life.<ref name=Urofsky>Urofsky, Melvin I. ''Louis D. Brandeis: A Life''. New York: Pantheon (2009) ISBN 0375423664</ref>{{rp|18}} |
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According to biographer [[Melvin Urofsky]], Brandeis was influenced greatly by his uncle [[Lewis Naphtali Dembitz]]. Unlike other members of the extended Brandeis family, Dembitz regularly practiced [[Judaism]] and was actively involved in [[Zionist]] activities. Brandeis later changed his middle name from David to Dembitz in honor of his uncle, and through his uncle's model of social activism, became an active member of the [[Zionist movement]] later in his life.<ref name=Urofsky>Urofsky, Melvin I. ''Louis D. Brandeis: A Life''. New York: Pantheon (2009) {{ISBN|0-375-42366-4}}</ref>{{rp|18}} |
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=== Childhood education === |
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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."<ref name=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."<ref name=Vile/> |
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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 |
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 16, the Louisville University of the Public Schools awarded him a gold medal for "excellence in all his studies."<ref name=Strum>Strum, Philippa. ''Louis D. Brandeis: Justice for the People'', Harvard University Press (1984)</ref>{{rp|10}} Anticipating an economic downturn, Adolph Brandeis relocated the family to Europe in 1872. After a period spent traveling, Louis spent two years studying at the {{Interlanguage link|Annenschule (Dresden)|de|lt=Annenschule}} in [[Dresden]], Germany, where he excelled. He later credited his capacity for critical thinking and his desire to study law in the United States to his time there.<ref name=Vile/> |
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===Law school=== |
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Returning to the U.S. in 1875, Brandeis entered [[Harvard Law School]] at the age of |
Returning to the U.S. in 1875, Brandeis entered [[Harvard Law School]] at the age of 18. His admiration for the wide learning and debating skills of his uncle, Lewis Dembitz, inspired him to study law.<ref name=Klebanow/>{{rp|58}} Despite the fact that he entered the school without any financial help from his family, he became "an extraordinary student".<ref name=Vile/> |
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During his time at Harvard, the teaching of law was undergoing a change of method from the traditional, memorization-reliant, "black |
During his time at Harvard, the teaching of law was undergoing a change of method from the traditional, memorization-reliant, "black-letter" case law, to a more flexible and interactive [[Socratic method]], using [[Casebook method|the casebook method]] to instruct students in legal reasoning. Brandeis easily adapted to the new methods, becoming active in class discussions,<ref name=Klebanow/> and joined the Pow-Wow club, similar to today's [[moot court]]s in law school, which gave him experience in the role of a judge.<ref name=Vile/>{{rp|122}} |
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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.<ref name=McCraw>McCraw, Thomas K. ''Prophets of Regulation'', Harvard University Press (1984)</ref> |
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.<ref name=McCraw>McCraw, Thomas K. ''Prophets of Regulation'', Harvard University Press (1984)</ref> |
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His eyesight began failing as a result of the large volume of required reading and the poor visibility under [[Gas lighting|gaslights]]. The school doctors suggested he give up school entirely. He found another alternative: paying fellow law students to read the textbooks aloud, while he tried to memorize the legal principles. Despite the difficulties, his academic work and memorization talents were impressive. He graduated in 1877 as [[valedictorian]] and was elected to [[Phi Beta Kappa]].<ref>{{Cite web|url=https://www.pbk.org/About-PBK/Justices|title=PBK – Phi Beta Kappa Supreme Court Justices|access-date=April 15, 2020|archive-date=August 3, 2020|archive-url=https://web.archive.org/web/20200803172616/https://www.pbk.org/About-PBK/Justices|url-status=live}}</ref> Brandeis achieved the highest grade point average in the history of the school,<ref name=Vile/>{{rp|122}} a record that stood for eight decades.<ref name=Klebanow/> Brandeis said of that period: "Those years were among the happiest of my life. I worked! For me, the world's center was Cambridge."<ref name=Mason/>{{rp|47}} |
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== Early career in law == |
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==Early career in law== |
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[[File:Brandeis1900.jpg|thumb|Photo of Louis Brandeis (circa 1900)]] |
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[[File:Picture of Louis Brandeis.jpg|thumb|Photo of Louis Brandeis {{circa}} 1900]] |
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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<ref>[http://www.dnr.mo.gov/shpo/nps-nr/66000941.pdf Jefferson National Expansion Memorial]</ref> and accepted a job with a law firm in St. Louis, where he filed his first brief and published his first law review article.<ref name=Klebanow/> 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.<ref name=Klebanow/>{{rp|59}} |
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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<ref>{{Cite web |url=http://www.dnr.mo.gov/shpo/nps-nr/66000941.pdf |title=Jefferson National Expansion Memorial |access-date=January 23, 2008 |archive-date=February 28, 2008 |archive-url=https://web.archive.org/web/20080228121648/http://www.dnr.mo.gov/shpo/nps-nr/66000941.pdf |url-status=live }}</ref> and accepted a job with a law firm in St. Louis, where he filed his first brief and published his first law review article.<ref name=Klebanow/> After seven months, he tired of the minor casework and accepted an offer by his Harvard classmate, [[Samuel D. Warren II]], 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 also came from a wealthy Boston family and their new firm benefitted from his family's connections.<ref name=Klebanow/>{{rp|59}} |
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Soon after returning to Boston, while waiting for the law firm to gain clients, he was appointed law clerk to [[Horace Gray]], 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 Gray."<ref name=Klebanow/>{{rp|59}} |
Soon after returning to Boston, while waiting for the law firm to gain clients, he was appointed law clerk to [[Horace Gray]], 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 Gray."<ref name=Klebanow/>{{rp|59}} |
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===First law firm: Warren and Brandeis=== |
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The 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 firm,<ref name=Klebanow/> garnering Brandeis more financial security and eventually the freedom to take an active role in progressive causes. |
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As a partner in his law firm, he worked as a consultant and advisor to businesses, but also as a litigator who enjoyed courtroom challenges. In a letter to his brother, he writes, "There is a certain joy in the exhaustion and backache of a long trial which shorter skirmishes cannot afford."<ref name=Klebanow/> On November 6, 1889, he argued for the first time before the U.S. Supreme Court as the Eastern counsel of the [[Wisconsin Central Railway (1897–1954)|Wisconsin Central Railroad]] in ''Wisconsin Central Railroad Company v. Price County'', 133 US 496 (1889),<ref>{{cite web|url=https://casetext.com/case/wisconsin-railroad-co-v-price-county|access-date=November 16, 2020|title=Wisconsin C.R. Co. v. Price County|archive-date=June 25, 2022|archive-url=https://web.archive.org/web/20220625074216/https://casetext.com/case/wisconsin-railroad-co-v-price-county|url-status=live}}</ref> and won. Soon after, Chief Justice [[Melville Fuller]] recommended him to a friend as the best attorney he knew of in the Eastern U.S.<ref name=Lief>{{rp|86}}Lief, Alfred. ''Brandeis: The Personal History of an American Ideal'', Stackpole Sons (1936)</ref> |
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The 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,"<ref name=Klebanow/> garnering Brandeis more financial security and the freedom to eventually take an active role in progressive causes. |
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Before taking on business clients, he insisted they agree to two major conditions: that he would only deal with the person in charge, never intermediaries, and he could be allowed to advise on any relevant aspects of the firm's affairs. |
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As partner in his law firm, he worked as a consultant and advisor to businesses, but was also as a litigator "who reveled in the challenge of the courtroom." In a letter to his brother, he writes, "There is a certain joy in the exhaustion and backache of a long trial which shorter skirmishes cannot afford."<ref name=Klebanow/> In 1889, he pleaded for the first time before the U.S. Supreme Court as the eastern counsel of the [[Wisconsin Central Railway (1897–1954)|Wisconsin Central Railroad]], a case which he won. Brandeis's biographer, Alfred Lief, notes that 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'."<ref name=Lief>Lief, Alfred. ''Brandeis: The Personal History of an American Ideal'', Stackpole Sons (1936)</ref> |
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He |
He preferred being an adviser and counselor, rather than simply a strategist in lawsuits, which would allow him to advise his clients on how to avoid problems, such as lawsuits, strikes, or other crises.<ref name=Klebanow/> Brandeis explained: "I would rather have clients than be somebody's lawyer."<ref name=Mason/>{{rp|86}} In a note found among his papers, he reminded himself to "advise client on what he should have, not what he wants."<ref name=Mason/>{{rp|20}} |
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Brandeis describes how he saw himself as an advisor: |
Brandeis describes how he saw himself as an advisor: |
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:"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."<ref name=Brandeis3>Brandeis, Louis. ''The Opportunity in the Law'', Harvard University Press (1911)</ref> |
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{{blockquote|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.<ref name=Brandeis3>Brandeis, Louis. ''The Opportunity in the Law'', Harvard University Press (1911)</ref>}} |
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Brandeis was "unusual among lawyers" because he consistently turned away cases he considered bad. 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."<ref name=Klebanow/> 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."<ref name=Mason/>{{rp|233}} |
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Brandeis was unusual among lawyers since he always turned away cases he considered bad. If he believed a client to be in the wrong, he would persuade his clients to make amends, otherwise he would withdraw from the case.<ref name=Klebanow/> 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."<ref name=Mason/>{{rp|233}} |
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=== Common law and the right to privacy === |
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Brandeis and Warren's firm has been in continuous practice in Boston since its founding in 1879; the firm is known as [[Nutter McClennen & Fish]]. |
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Between 1888 and 1890, Brandeis and his law partner, Samuel Warren, wrote three scholarly articles published in the ''[[Harvard Law Review]]''. The third, "The Right to Privacy," was the most important, with legal scholar [[Roscoe Pound]] saying it accomplished "nothing less than adding a chapter to our law."<ref>Solove, Daniel J., Rotenberg, Marc, and Schwartz, Paul M., ''Privacy, Information, and Technology'' (Aspen Publishers, 2006), 9</ref> |
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===Privacy law=== |
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Brandeis and Warren discussed "snapshot photography," a recent innovation in journalism, that allowed newspapers to publish photographs and statements of individuals without obtaining their consent. They argued that private individuals were being continually injured and that the practice weakened the "moral standards of society as a whole."<ref name=Klebanow/>{{rp|61}}<ref name=Privacy>Warren and Brandeis, [http://www.law.louisville.edu/library/collections/brandeis/node/225 ''The Right To Privacy''], 4 ''Harvard Law Review'' 193 (1890)</ref> They wrote:<ref name=Privacy/> |
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Brandeis defined modern notions of the individual right to privacy in a path-breaking article he published with his partner, Warren, in the ''Harvard Law Review'' of December 15, 1890, on "The Right to Privacy." Stimulated by anger at offensive publicity concerning the social activities of Warren's family, it suggested a new legal concept that has had lasting influence. Building on diverse analogies in the law of defamation, of literary property, and of eavesdropping, Brandeis argued that the central, if unarticulated, interest protected in these fields was an interest in personal integrity, "the right to be let alone," that ought to be secured against invasion except for some compelling reason of public welfare. Brandeis saw emotions as a positive expression of human nature, and so desired privacy protection for them as protection against repression of the human spirit.<ref>Grant B. Mindle, "Liberalism, Privacy, and Autonomy," ''Journal of Politics'' (1989) 51#3 pp. 575–598 [https://www.jstor.org/stable/2131496 in JSTOR] {{Webarchive|url=https://web.archive.org/web/20180911192831/https://www.jstor.org/stable/2131496 |date=September 11, 2018 }}</ref> |
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: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. |
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Between 1888 and 1890, Brandeis and his law partner, Samuel Warren, wrote three scholarly articles published in the ''Harvard Law Review''. The third, "The Right to Privacy," was the most important, with legal scholar [[Roscoe Pound]] saying it accomplished "nothing less than adding a chapter to our law."<ref>Solove, Daniel J., Rotenberg, Marc, and Schwartz, Paul M., ''Privacy, Information, and Technology'' (Aspen Publishers, 2006), 9</ref> |
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: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....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. |
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Brandeis and Warren discussed "snapshot photography," a recent innovation in journalism, that allowed newspapers to publish photographs and statements of individuals without obtaining their consent. They argued that private individuals were being continually injured and that the practice weakened the "moral standards of society as a whole."<ref name=Klebanow/>{{rp|61}}<ref name=Privacy>Warren and Brandeis, [http://louisville.edu/law/library/special-collections/the-louis-d.-brandeis-collection/the-right-to-privacy ''The Right To Privacy''] {{Webarchive|url=https://web.archive.org/web/20150712154217/http://louisville.edu/law/library/special-collections/the-louis-d.-brandeis-collection/the-right-to-privacy |date=July 12, 2015 }}, 4 ''Harvard Law Review'' 193 (1890)</ref> They wrote:<ref name=Privacy/> |
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Legal historian Wayne McIntosh wrote 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."<ref name=McIntosh>McIntosh, Wayne V., ''Judicial Entrepreneurship: the Role of the Judge in the Marketplace of Ideas'', Greenwood Publishing (1997)</ref>{{rp|24}} State courts and legislatures quickly drew on Brandeis and Warren's work. In 1905 the Georgia Supreme Court recognized a right to privacy in a case involving photographs. By 1909, California, New York, Pennsylvania, Virginia, and Utah had passed statutes establishing the right. In 1939 the [[American Law Institute|American Law Institute's]] ''[[Restatements of the Law|Restatement of Torts]]'' also recognized a right to privacy at common law. Years later, after becoming a justice on the Supreme Court, Brandeis discussed the right to privacy in his famous [[dissenting opinion|dissent]] in: ''[[Olmstead v. United States]]''. |
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{{blockquote|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. |
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== Personal life and marriage == |
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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. ... 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.}} |
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[[File:Brandeis canoe.jpg|thumb|Brandeis in his canoe. Circa 1916.]] |
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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, Boston|Beacon Hill]] district and had two daughters, Susan, born in 1893 and Elizabeth, 1896.<ref name=Mason/>{{rp|72-78}} |
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Legal historian Wayne McIntosh wrote 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."<ref name=McIntosh>McIntosh, Wayne V., ''Judicial Entrepreneurship: the Role of the Judge in the Marketplace of Ideas'', Greenwood Publishing (1997)</ref>{{rp|24}} State courts and legislatures quickly drew on Brandeis and Warren's work. In 1905 the Georgia Supreme Court recognized a right to privacy in a case involving a photograph of the plaintiff published without his consent in an advertisement with a misattributed quotation.<ref>''Pavesich v. New England Life Ins. Co.'', 122 Ga. 190 (1905).</ref> By 1909, California, New York, Pennsylvania, Virginia, and Utah had passed statutes establishing the right. In 1939 the [[American Law Institute]]'s ''[[Restatement of Torts]]'' also recognized a right to privacy at common law. Years later, after becoming a justice of the Supreme Court, Brandeis discussed the right to privacy in his famous [[dissenting opinion]] in ''[[Olmstead v. United States]]''. |
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Alice supported her husband's resolve to devote most of his time to public causes. The Brandeis family "lived well but without extravagance."<ref name=Klebanow/>{{rp|63}} 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.<ref name=Vile/> |
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==Personal life and marriage== |
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: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.<ref name=Strum/>{{rp|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." |
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[[File:Brandeis canoe.jpg|thumb|Brandeis in his canoe {{circa}} 1916]] |
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In 1890, Brandeis became engaged to his second cousin Alice Goldmark, of New York. He was then 34 years of age and had previously found little time for courtship. Alice was the daughter of [[Joseph Goldmark]], a physician who had immigrated to America from [[Austria-Hungary]] after the collapse of the [[Revolutions of 1848 in the Austrian Empire|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, Boston|Beacon Hill]] district and had two daughters, Susan Brandeis Gilbert, born in 1893, and Elizabeth Brandeis Rauschenbush, born in 1896.<ref name=Mason/>{{rp|72–78}} |
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Alice supported her husband's resolve to devote most of his time to public causes. The Brandeis family "lived well but without extravagance."<ref name=Klebanow/>{{rp|63}} With the continuing success of his law practice, they later purchased a vacation house in [[Dedham, Massachusetts|Dedham]], where they would spend many of their weekends and summer vacations. Unexpectedly, his wife's health soon became frail, and so in addition to his professional duties, he found it necessary to manage the family's domestic affairs.<ref name=Vile/> |
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== Career as a public advocate == |
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{{blockquote|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.<ref name=Strum/>{{rp|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."<ref name=hair/>}} |
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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 then took on cases with the help of colleagues, two of whom became partners in his new firm, Brandeis, Dunbar, and Nutter, in 1897.<ref name=Mason/>{{rp|82-86}} |
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==Progressivism== |
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He won his first important victory in 1891, when he persuaded the Massachusetts legislature "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."<ref name=Lief/>{{rp|34-37}} The legislature was won over by his arguments and changed the regulations. |
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Brandeis became a leader of the [[Progressive Era|Progressive movement]], and he used the law as the instrument for social change. From 1897 to 1916, he was heavily involved with multiple reform crusades. He fought in Boston to secure honest traction franchises and, in 1907 launched a six-year fight to prevent the banker [[J. P. Morgan]], who acquired the [[New York, New Haven and Hartford Railroad]], from monopolizing [[New England]]'s railroads. After an exposé of [[insurance fraud]] in 1906, he devised the Massachusetts plan to protect small wage-earners through savings bank [[life insurance]]. He supported the conservation movement; in 1910, he emerged as the chief figure in the [[Pinchot–Ballinger controversy|Pinchot–Ballinger investigation]], saying:<ref>Melvin I. Urofsky, '' Louis D. Brandeis and the Progressive Tradition'' (1981)</ref> "We may have democracy, or we may have wealth concentrated in the hands of a few, but we can't have both."<ref>As quoted by Raymond Lonergan in ''Mr. Justice Brandeis, Great American'' (1941), p. 42.</ref> |
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==Public advocate== |
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Brandeis wrote that "the law has everywhere a tendency to lag behind the facts of life." Therefore he planned, according to historian Steven Piott, to "chip away at the assumption that the principles of law should be unchanging" and "break the traditional hold on legal thinking and work to harmonize the law with the needs of the community."<ref name=Piott>Piott, Steven L. ''American Reformers, 1870-1920'', Rowman & Littlefield (2006)</ref> |
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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. Brandeis then took on cases with the help of colleagues, two of whom became partners in 1897 in his new firm: Brandeis, Dunbar, and Nutter.<ref name=Mason/>{{rp|82–86}} |
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He won his first important victory in 1891, when he persuaded the Massachusetts legislature to make the liquor laws less restrictive and thereby more reasonable and enforceable. He suggested a viable "middle course": by moderating the existing regulations, he told the lawmakers that they would remove liquor dealers' incentive to violate or to corrupt the laws. The legislature was won over by his arguments and changed the regulations.<ref name=Lief/>{{rp|34–37}} |
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[[File:Brandeis 1915.jpg|thumb|Louis Brandeis, 1915]] |
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Part of his reasoning and philosophy for acting as a public advocate he later explained in his 1911 book, ''The Opportunity in the Law'': |
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Brandeis wrote that "the law has everywhere a tendency to lag behind the facts of life." He chipped away at assumptions that |
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: "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."<ref name=Brandeis3/> |
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legal principles should never be changed. He worked to break the traditional hold on legal thinking to make laws that met the needs of the changing community.<ref name=Piott>Piott, Steven L. ''American Reformers, 1870–1920'', Rowman & Littlefield (2006)</ref> |
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[[File:Louis Brandeis portrait, 1915.jpg|thumb|Louis Brandeis, 1915]] |
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In one of his first such cases, in 1894, 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."<ref name=Klebanow/> 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.<ref name=Lief/>{{rp|52-54}} |
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Part of his reasoning and philosophy for acting as a public advocate was later explained in his 1911 book, ''The Opportunity in the Law'': |
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{{blockquote|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.<ref name=Brandeis3/>}} |
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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.<ref name=Strum/>{{rp|57-61}} |
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In one of his first such cases, in 1894, 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 poorhouses. Lincoln, who had visited the poorhouses for years, saw inmates dwelling in misery and the temporarily unemployed thrown in together with the mentally ill as well as hardened criminals.<ref name=Klebanow/> 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.<ref name=Lief/>{{rp|52–54}} |
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However, the transit franchise struggle revealed that many of Boston's politicians had placed "friends" and "ward heelers" on the payrolls of the private transit companies. Lief writes that "One alderman alone had found work in this way for 200 of his followers. . . . [and] in Boston, as in other American cities, such abuses were part of a larger pattern of corruption in which graft and bribery were commonplace. Convicted felons would return from prison terms to resume their political careers.".<ref name=Lief/>{{rp|70}} "Always the moralist," writes biographer Thomas Mason, "Brandeis declared that 'misgovernment in Boston had reached the danger point.'" He announced that from then on he would keep a ledger of "good and bad deeds," making a record of Boston's politicians accessible to all the city's voters.<ref name=Mason/> If one of his public addresses in 1903, he stated his goal:<ref name=Mason/>{{rp|121}} |
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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 control over the city's emerging subway system. Brandeis prevailed, and the legislature enacted his bill.<ref name=Strum/>{{rp|57–61}} |
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: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. |
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The transit franchise struggle revealed that many of Boston's politicians had placed political friends on the payrolls of the private transit companies. One alderman gave jobs to 200 of his followers. In Boston and other cities, such abuses were part of the corruption in which graft and bribery were common, and in some cases, even newly freed felons resumed their political careers.<ref name=Lief/>{{rp|70}} "Always the moralist," writes biographer Thomas Mason, "Brandeis declared that 'misgovernment in Boston had reached the danger point.{{' "}} He declared that from then on he would keep a record of good and bad political deeds, which would be open to all Boston voters.<ref name=Mason/> In one of his public addresses in 1903, he stated his goal: |
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{{blockquote|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.<ref name=Mason/>{{rp|121}}}} |
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In 1906, Brandeis won a modest victory when the state legislature enacted a measure he drafted designed to make 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.<ref name=Mason/>{{rp|121}} |
In 1906, Brandeis won a modest victory when the state legislature enacted a measure he drafted designed to make 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.<ref name=Mason/>{{rp|121}} |
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His anti-corruption philosophy was included in his closing argument for the Glavis-Ballinger case of 1910, in which he stated that the public servant "cannot be worthy of the respect and admiration of the people unless they add to the virtue of obedience some other virtues—the virtues of manliness, of truth, of courage, of willingness to risk positions, of the willingness to risk criticism, of the willingness to risk the misunderstanding that so often comes when people do the heroic thing."<ref>Bruce, Will M. ''Classics of Administrative Ethics'', Westview Press (2001)</ref>{{rp|251}} |
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===Against monopolies=== |
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:They cannot be worthy of the respect and admiration of the people unless they add to the virtue of obedience some other virtues—the virtues of manliness, of truth, of courage, of willingness to risk positions, of the willingness to risk criticism, of the willingness to risk the misunderstanding that so often comes when people do the heroic thing. |
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[[File:1925.B&O.Railroad.Stock.Louis.Brandeis.jpg|thumb|1925 B&O Railroad bond certificate owned by Louis D. Brandeis]] |
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In the 1890s, Brandeis began to question his views on American industrialism, write Klebanow and Jonas. He became aware of the growing number of giant companies 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 denounced "cut-throat competition" and worried about monopolies. He also became concerned about the plight of workers and was more sympathetic to the labor movement.<ref name=Klebanow/> His earlier legal battles had convinced him that concentrated economic power could have a negative effect on a free society.<ref name=Piott/>{{rp|139}} |
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=== |
===Against big corporations=== |
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Brandeis was becoming increasingly conscious of and hostile to powerful corporations and the trend toward bigness in American industry and finance. He argued that great size conflicted with efficiency and added a new dimension to the [[Efficiency Movement]] of the Progressive Era. 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.<ref name=Klebanow/>{{rp|76}} Although the [[Sherman Antitrust Act]] was enacted in 1890, it was not until the 20th century that there was any major effort to apply it. |
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By 1910, Brandeis noticed that even America's leaders, including President [[Theodore Roosevelt]], were beginning to question the value of antitrust policies. Some business experts felt that nothing could prevent the concentration of industry and so big business was here to stay.<ref name=Klebanow/>{{rp|76}} As a result, leaders like Roosevelt began to "regulate" but not to limit the growth and operation of corporate monopolies, but Brandeis wanted the trend to bigness slowed or even reversed. He was convinced that monopolies and trusts were "neither inevitable nor desirable."<ref name=Klebanow/> In support of Brandeis's position were the presidential candidate [[William Jennings Bryan]] and [[Wisconsin]] Senator [[Robert M. La Follette Sr]].<ref name=Klebanow/> |
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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."<ref name=Klebanow/> His earlier legal battles had convinced him, according to Piott, "that concentrated economic power could have a negative effect on a free society."<ref name=Piott/>{{rp|139}} |
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Brandeis also denied that large trusts were more efficient than the smaller firms 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." |
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However, he also recognized the limits of trying to split up some monopolies. In an address in 1912, he said: |
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He explained that an executive could not ever 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 aware of the [[economies of scale]] and the initially lower prices offered by growing companies, but he noted that once a large company drove out its competition, "the quality of its products tended to decline while the prices charged for them tended to go up." Those companies would become "clumsy dinosaurs, which, if they ever had to face real competition, would collapse of their own weight." He said in an address to the Economic Club of New York in 1912: |
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: "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?" <ref name=Regulation/> |
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{{blockquote|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.<ref name=Regulation>Brandeis, Louis. [http://louisville.edu/law/library/special-collections/the-louis-d.-brandeis-collection/the-regulation-of-competition-versus-the-regulation-of-monopoly-by-louis-d.-brandeis "The Regulation of Competition Versus the Regulation of Monopoly"] {{Webarchive|url=https://web.archive.org/web/20150630005130/http://louisville.edu/law/library/special-collections/the-louis-d.-brandeis-collection/the-regulation-of-competition-versus-the-regulation-of-monopoly-by-louis-d.-brandeis |date=June 30, 2015 }}, address to the Economic Club of New York on November 1, 1912</ref>}} |
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=== Against powerful corporations === |
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===Against mass consumerism=== |
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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.<ref name=Klebanow/>{{rp|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. |
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Among Brandeis's key themes was the conflict he saw between 19th-century values, with its culture of the small producer, and an emerging 20th-century age of big business and consumerist mass society. Brandeis was hostile to the new consumerism. Though himself a millionaire, Brandeis disliked wealthy persons who engaged in [[conspicuous consumption]] or were ostentatious. He did little shopping himself, and unlike his wealthy friends who owned yachts, he was satisfied with his canoe. |
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He hated advertising which he said "manipulated" average buyers. He realized that newspapers and magazines were dependent on advertising for their revenues, which caused them to be "less free" than they should be. He said that national advertisers also undermined the traditional relationship between consumers and local businesses. He urged journalists to "teach the public to look with suspicion upon every advertised article"<ref name=McCraw/>{{rp|107}} so that they would not suffer from marketing manipulation by giant corporations.<ref name=McCraw/>{{rp|107}} |
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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."<ref name=Klebanow/>{{rp|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.<ref name=Klebanow/> |
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==Becoming "the people's lawyer"== |
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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: |
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[[File:Brandeis office 1916.jpg|thumb|Brandeis (center) in his Boston office, 1916]] |
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Brandeis was often referred to as "the people's lawyer."<ref name=Klebanow/>{{rp|66}} He no longer accepted payment for "public interest" cases even when they required pleadings before judges, legislative committees, or administrative agencies. He began to give his opinion by writing magazine articles, making speeches, and helping form interest groups. He insisted on serving without pay so that he could freely address the wider issues involved beyond the case at hand, rather than direct financial incentive.<ref name=Klebanow/>{{rp|66}} |
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In an address to Harvard law students, he suggested that they should try to serve the people: |
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: "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. |
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{{blockquote|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.<ref name=BrandeisAddress>Brandeis, Louis. [http://louisville.edu/law/library/special-collections/the-louis-d.-brandeis-collection/business-a-profession-chapter-20 "Opportunity in the Law"] {{Webarchive|url=https://web.archive.org/web/20150629203928/http://louisville.edu/law/library/special-collections/the-louis-d.-brandeis-collection/business-a-profession-chapter-20 |date=June 29, 2015 }}, address delivered May 4, 1905, before the Harvard Ethical Society</ref>}} |
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===Developing new life insurance system=== |
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: "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."<ref name=Regulation>Brandeis, Louis. ''[http://www.law.louisville.edu/library/collections/brandeis/node/260 ''The Regulation of Competition Versus the Regulation of Monopoly''], address to the Economic Club of New York on November 1, 1912</ref> |
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In March 1905, he became counsel to a New England policyholder's committee, which was concerned that its scandal-ridden insurance company would file bankruptcy and that the policyholders would lose their investments and insurance protection. He served without pay to be free to address the wider issues involved. |
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He spent the next year in studying the workings of the life insurance industry, often writing articles and giving speeches about his findings, at one point describing its practices as "legalized robbery."<ref name=Strum/>{{rp|76–77}} By 1906, he had concluded that life insurance was a "bad bargain for the vast majority of policyholders," mostly because of the inefficiency of the industry. He also learned that a little-understood clause in the policies of low-wage workers allowed the policy to be canceled when they missed a payment and that most policies lapsed; only one out of eight policyholders received benefits, which led to large profits for insurance companies.<ref name=Klebanow/> |
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=== Against mass consumerism === |
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Brandeis then created a "groundswell" in Massachusetts with his campaign to educate the public. His efforts, with the help of progressive businessmen, social reformers, and trade unionists, led to the creation of a new "savings bank life insurance" system. By March 1907, the Savings Bank Insurance League had 70,000 members, and Brandeis's face and name now appeared regularly in newspapers.<ref name=Mason/>{{rp|164}} He next 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 called that bill one of "his greatest achievements" and kept a watchful eye on it.<ref name=Mason/>{{rp|177–180}} |
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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. |
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===Preventing J. P. Morgan's railroad monopoly=== |
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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'." |
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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]].<ref>Henry Lee Staples, and Alpheus Thomas Mason, ''The Fall of a Railroad Empire: Brandeis and the New Haven Merger Battle'' (Syracuse University Press, 1947).</ref> 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 (Boston)|State Street]] bankers. 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."<ref name=Klebanow/>{{rp|69}} |
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J. P. Morgan had pursued an expansion policy by acquiring many of the line's competitors to make the New Haven into a single unified network. Its acquisitions included railways, trolleys, and shipping companies.<ref name=Weller>Weller, John L., ''The New Haven Railroad: its Rise and Fall'', Hastings House (1969)</ref>{{rp|41–52}} In June 1907, Brandeis was asked by Boston and Maine stockholders to present their cause to the public, a case that he again took on by insisting on serving without payment, "leaving him free to act as he thought best." |
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But in general, Brandeis felt that consumers were becoming "servile, self-indulgent, indolent, [and] ignorant." The consumer, he said, "had abrogated his role as a countervailing power against bigness. . . He lies not only supine, but paralyzed, and deserves to suffer like others who take their lickings 'lying down.'" He was repelled by the flaunting materialism overtaking America, often denouncing conspicuous consumption. But by doing so, notes McCraw, "he drifted imperceptibly into an attack on consumer preference, a principle that lies at the very core of a market economy."<ref name=McCraw/>{{rp|107}} |
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After months of extensive research, Brandeis published a 70-page booklet in which he argued that New Haven's acquisitions were putting its financial condition in jeopardy, and he predicted that within a few years, it would be forced to cut its dividends or to become insolvent. He spoke publicly to Boston's citizens warning them that the New Haven "sought to monopolize the transportation of New England." He soon found himself under attack by not only the New Haven but also by many newspapers, magazines, chambers of commerce, Boston bankers, and college professors.<ref name=Klebanow/>{{rp|69}} "I have made," he wrote to his brother, "more enemies than in all my previous fights together."<ref name=Klebanow/>{{rp|69}} |
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== Becoming the "People's Lawyer" == |
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However, in 1908, the New Haven's proposed merger was dealt "several stunning blows." Among them, the [[Massachusetts Supreme Judicial Court]] ruled that New Haven had acted illegally during earlier acquisitions. Brandeis met twice with US President [[Theodore Roosevelt]], who convinced the [[US Department of Justice]] to file suit against New Haven for [[antitrust]] violations. At a subsequent hearing in front of the [[Interstate Commerce Commission]] in Boston, New Haven's president "admitted that the railroad had maintained a floating slush fund that was used to make 'donations' to politicians who cooperated."<ref name=Weller/>{{rp|49–154}} |
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[[File:Brandeis office 1916.jpg|thumb|Brandeis (center) in his Boston office, 1916]] |
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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."<ref name=Klebanow/>{{rp|66}} |
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Within a few years, New Haven's finances were undone, just as Brandeis had predicted. By the spring of 1913, the Department of Justice launched a new investigation, and the next year, the Interstate Commerce Commission charged the New Haven with "extravagance and political corruption and its board of directors with dereliction of duty."<ref name=Klebanow/> 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."<ref name=Mason/>{{rp|203–214}} A newspaper in 1914 describes Brandeis as someone "whose prophecies of disaster to the New Haven Railroad have been fully justified."<ref>{{cite news|title=Louis D. Brandeis |url=https://archive.org/stream/independen79v80newy#page/n119/mode/1up|newspaper=The Independent |date=July 27, 1914|access-date=July 24, 2012}}</ref> |
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In a 1905 address to law students and others at Harvard, he explained his philosophy: |
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In 1934, Brandeis had another legal confrontation with Morgan, this one relating to securities regulation bills. J. P. Morgan's resident economist, Russell Leffingwell, felt it necessary to remind their banker, Tom Lamont, about the person with whom they would be dealing: |
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: "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 . . . . |
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{{blockquote|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.<ref name=Chernow/>}} |
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: 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."<ref name=BrandeisAddress>Brandeis, Louis. [http://www.law.louisville.edu/library/collections/brandeis/node/222 ''Opportunity in the Law''], address delivered May 4, 1905, before the Harvard Ethical Society</ref> |
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Banking historian [[Ron Chernow]] wrote, "For the House of Morgan, Louis Brandeis was more than just a critic, he was an adversary of almost mythical proportion."<ref name=Chernow>Chernow, Ron. ''The House of Morgan: An American Banking Dynasty and the Rise of Modern Finance'', Grove Press (2001)</ref>{{rp|379}} |
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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:<ref>''New York Times'', "Brandeis to Teach Roads Without Pay," Nov. 30, 1910</ref> |
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===Upholding workplace laws with the "Brandeis Brief"=== |
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: 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. |
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{{main|Brandeis Brief}} |
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In 1908, he chose to represent the state of Oregon in the case of ''[[Muller v. Oregon]]'' before the US Supreme Court. At issue was whether it was constitutional for a state law to limit the hours worked by female workers. Until then, it had been considered an "unreasonable infringement of freedom of contract" between employers and their employees for a state to set any wages or hours legislation. |
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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 that, he filed what has become known today as the "[[Brandeis Brief]]." It was much shorter than traditional briefs 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 displaying that "when women worked long hours, it was destructive to their health and morals."<ref name=Strum/>{{rp|120–121}} The brief was packed full of social research and data to demonstrate the public interest in a ten-hour limitation on women's working hours. His brief proved decisive in ''Muller v. Oregon'', the first Supreme Court ruling to accept the legitimacy of a scientific examination of the social conditions, in addition to the legal facts involved in a case.<ref>{{cite journal |first=Melvin I. |last=Urofsky |title=Louis D. Brandeis: Advocate Before and On the Bench |journal=Journal of Supreme Court History |year=2005 |volume=30 |issue=1 |pages=31–46 |doi=10.1111/j.1059-4329.2005.00096.x|s2cid=145579255 }}</ref> |
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=== Developing new life insurance system === |
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The strategy worked, and the Oregon law was upheld. Justice [[David Josiah Brewer|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 wrote that with the Supreme Court affirming Oregon's [[minimum wage law]], Brandeis "became the leading defender in the courts of protective labor legislation."<ref name=Mason/>{{rp|250–253}} <ref name=Brief>Brandeis, Louis. [http://louisville.edu/law/library/special-collections/the-louis-d.-brandeis-collection/the-brandeis-brief-in-its-entirety The Brandeis Brief] {{Webarchive|url=https://web.archive.org/web/20150630004829/http://louisville.edu/law/library/special-collections/the-louis-d.-brandeis-collection/the-brandeis-brief-in-its-entirety |date=June 30, 2015 }}, ''Muller v. Oregon'' (208 US 412)</ref> As [[William O. Douglas|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."<ref name="Douglas" /> |
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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."<ref name=Strum/>{{rp|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 canceled 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.<ref name=Klebanow/> |
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One of the hallmarks of the case was Brandeis's minimizing of common-law jurisprudence, in favor of extralegal information relevant to the case. According to the 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.<ref>Powers, Stephen, and Rothman, Stanley. ''The Least Dangerous Branch?: Consequences of Judicial Activism'', Smith College, Greenwood Publishing Group (2002)</ref> John Vile added that this new "Brandeis Brief" was increasingly used, most notably in the ''[[Brown v. Board of Education]]'' case in 1954 that desegregated public schools.<ref name=Vile/>{{rp|123}} |
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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..."<ref name=Mason/>{{rp|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." <ref name=Mason/>{{rp|177-180}} |
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==Supporting President Wilson== |
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=== Preventing J.P. Morgan's railroad monopoly === |
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[[File:Woodrow Wilson (Nobel 1919).jpg|thumb|President Woodrow Wilson, 1919]] |
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Brandeis's positions on regulating large corporations and monopolies carried over into the presidential campaign of 1912. Democratic candidate [[Woodrow Wilson]] made it a central issue, part of the larger debate over the future of the economic system and the role of the national government. While the Progressive Party 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 unfair business practices that made them possible.<ref name=Link>Link, Arthur S. ''Woodrow Wilson and the Progressive Era, 1910–1917'', Harper and Row (1954)</ref>{{rp|1–24}} |
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Although originally a La Follette Republican, Brandeis switched to the Democrats and urged his friends and associates to join him.<ref name="Marc Eric McClure 2003 76b">{{cite book|author=Marc Eric McClure|title=Earnest Endeavors: The Life and Public Work of George Rublee|url=https://books.google.com/books?id=hh2WpPTG53sC&pg=PA76|year=2003|publisher=Greenwood|page=76|isbn=9780313324093|access-date=October 31, 2016|archive-date=January 28, 2024|archive-url=https://web.archive.org/web/20240128094642/https://books.google.com/books?id=hh2WpPTG53sC&pg=PA76|url-status=live}}</ref><ref name=Piott/>{{rp|139}} The two men met for the first time at a private conference in New Jersey that August and spent three hours discussing economic issues. Brandeis left the meeting a "confirmed admirer" of Wilson, who he said was likely to make an "ideal president."<ref name=Mason/> Wilson thereafter began using the term "regulated competition," the concept that Brandeis had developed, and made it the essence of his program. In September, Wilson asked Brandeis to set forth explicitly how competition can be effectively regulated.<ref name=Mason/>{{rp|375–377}} |
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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 (Boston)|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."<ref name=Klebanow/>{{rp|69}} |
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Brandeis did so, and after Wilson's victory that November, he told Brandeis, "You were yourself a great part of the victory." Wilson considered nominating Brandeis first for Attorney General and later for Secretary of Commerce, but backed down after a loud outcry from corporate executives that Brandeis had earlier opposed in court battles. Wilson concluded that Brandeis was too controversial a figure to appoint to his cabinet.<ref name=Lief/>{{rp|257–258}} |
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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," writes historian John Weller.<ref name=Weller>Weller, John L., ''The New Haven Railroad: its Rise and Fall'', Hastings House (1969)</ref>{{rp|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." |
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Nevertheless, during Wilson's first year as president, Brandeis was instrumental in shaping the new Federal Reserve Act.<ref name=Link2/> His arguments had been decisive in breaking deadlock on banking issues. Wilson endorsed Brandeis's proposals and those of [[United States Secretary of State|Secretary of State]] William Jennings Bryan, both of whom felt that the banking system needed to be democratized and its currency issued and controlled by the government.<ref name=Piott/>{{rp|139}} They convinced Congress to enact the [[Federal Reserve Act]] in December 1913.<ref name=Link2>Link, Albert S. ''Wilson: the New Freedom'', Princeton University Press (1953)</ref>{{rp|28–31}} |
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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.<ref name=Klebanow/>{{rp|69}} "I have made," he wrote his brother, "more enemies than in all my previous fights together."<ref name=Klebanow/>{{rp|69}} |
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In 1913, Brandeis wrote a series of articles for ''[[Harper's Weekly]]'' that suggested ways of curbing the power of large banks and money trusts. In one of those, "What Publicity Can Do",<ref>{{cite magazine |last=Brandeis |first=Louis D. |url=https://ia904606.us.archive.org/17/items/sim_harpers-weekly_1913-12-20_58_2974/sim_harpers-weekly_1913-12-20_58_2974.pdf |date=December 20, 1913 |title=What Publicity Can Do |magazine=[[Harper's Weekly]] |volume=58 |number=2974 |pages=10–13 |access-date=May 31, 2024}}</ref> he authored the quote regarding governmental transparency for which he is best remembered, over a century later: "Sunlight is said to be the best of disinfectants."<ref>[https://sunlightfoundation.com/2009/05/26/brandeis-and-the-history-of-transparency/ Brandeis And The History Of Transparency] {{Webarchive|url=https://web.archive.org/web/20231224135135/https://sunlightfoundation.com/2009/05/26/brandeis-and-the-history-of-transparency/ |date=December 24, 2023 }}, ''[[Sunlight Foundation]]'', May 26, 2009. Retrieved December 23, 2023.</ref> |
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By 1908, however, the New Haven's proposed merger was "dealt several stunning blows." Among them, the [[Massachusetts Supreme Court]] ruled that New Haven had acted illegally during earlier acquisitions. Brandeis met twice with President [[Theodore Roosevelt]], who convinced the [[U.S. Department of Justice]] to file suit against New Haven for [[antitrust]] violations. At a subsequent hearing in front of the [[Interstate Commerce Commission]] in Boston, New Haven's president "admitted that the railroad had maintained a floating [[slush fund]] that was used to make 'donations' to politicians who cooperated."<ref name=Weller/>{{rp|49-154}} |
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And in 1914 he published a book entitled ''[[Other People's Money and How the Bankers Use It]].''<ref name=Money>Brandeis, Louis. [http://louisville.edu/law/library/special-collections/the-louis-d.-brandeis-collection/other-peoples-money-by-louis-d.-brandeis ''Other People's Money – and How the Bankers Use It''] {{Webarchive|url=https://web.archive.org/web/20150628194926/http://louisville.edu/law/library/special-collections/the-louis-d.-brandeis-collection/other-peoples-money-by-louis-d.-brandeis |date=June 28, 2015 }}, (1914) complete text from Louis D. Brandeis School of Law</ref> |
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Within a few years, "Haven's finances came undone just as Brandeis had predicted they would." By the spring of 1913, the Department of Justice launched a new investigation, and the following year the Interstate Commerce Commission charged the New Haven with "extravagance and political corruption and its board of directors with dereliction of duty."<ref name=Klebanow/> 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."<ref name=Mason/>{{rp|203-214}} |
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He also urged the Wilson administration to develop proposals for new antitrust legislation to give the [[United States Department of Justice|Department of Justice]] the power to enforce [[antitrust]] laws, with Brandeis becoming one of the architects of the [[Federal Trade Commission]]. Brandeis also 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."<ref name=McCraw/>{{rp|82}} |
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In 1934, during another confrontation with [[The House of Morgan]], this one relating to securities regulation bills, J.P. Morgan's resident economist, Russell Leffingwell, reminded their banker, Tom Lamont, when he wrote, ". . . I think you underestimate the forces we are antagonizing. . . I believe that we are confronted with the profound politico-economic philosophy, matured in the wood for twenty years, of the finest brain and the most powerful personality in the Democratic party, who happens to be a Justice of the Supreme Court." Banking historian Ron Chernow writes that "For the House of Morgan, Louis Brandeis was more than just a critic, he was an adversary of almost mythical proportion."<ref name=Chernow>Chernow, Ron. ''The House of Morgan: An American Banking Dynasty and the Rise of Modern Finance'', Grove Press (2001)</ref>{{rp|379}} |
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==Nomination and confirmation to the Supreme Court== |
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=== Upholding workplace laws with the "Brandeis Brief" === |
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{{main|Louis Brandeis Supreme Court nomination}} |
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[[File:Brandeis-Puck_1916.jpg|[[Political cartoon]] depicting a "Chorus of Grief Stricken Conservatives" as the Brandeis appointment dismays "kept" journalism, privilege, [[Wall Street]], [[monopoly]], and stand-pattism in 1916 ''[[Puck (magazine)|Puck]]'' cartoon|thumb|250px|upright]] |
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On January 28, 1916, Wilson [[Nomination and confirmation to the Supreme Court of the United States|nominated]] Brandeis as an [[associate justice of the United States Supreme Court]], to a seat vacated by [[Joseph R. Lamar]].<ref name=FJCBrandeis>{{cite web| title=Brandeis, Louis Dembitz| url=https://www.fjc.gov/history/judges/brandeis-louis-dembitz| publisher=Federal Judicial Center| location=Washington, D.C.| access-date=February 14, 2022| archive-date=January 27, 2022| archive-url=https://web.archive.org/web/20220127024604/https://www.fjc.gov/history/judges/brandeis-louis-dembitz| url-status=live}}</ref><ref>''New York Times'': [https://query.nytimes.com/gst/abstract.html?res=950DE3DB103FE233A2575AC2A9679C946796D6CF Brandeis Named for Highest Court," January 29, 1916] {{Webarchive|url=https://web.archive.org/web/20160304135128/http://query.nytimes.com/gst/abstract.html?res=950DE3DB103FE233A2575AC2A9679C946796D6CF |date=March 4, 2016 }}. Retrieved February 21, 2010.</ref> His nomination was bitterly contested and denounced by conservative Republicans, including former President [[William Howard Taft]], whose credibility was damaged by Brandeis in early court battles in which he called Taft a "[[muckraker]]".<ref name=Mason/>{{rp|470}} Further opposition came from members of the legal profession, including former [[Attorney General of the United States|Attorney General]] [[George W. Wickersham]] and former presidents of the [[American Bar Association]], such as former Senator and [[United States Secretary of State|Secretary of State]] [[Elihu Root]] of New York, who claimed Brandeis was "unfit" to serve on the Supreme Court.<ref name=Mason/>{{rp|470–475}} |
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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. |
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The controversy surrounding Brandeis's nomination was so great that the [[Senate Judiciary Committee]], for the first time in its history, held a public [[Confirmation hearing#United States|hearing]] on the nomination, allowing witnesses to appear before the committee and offer testimony both in support of and in opposition to Brandeis's confirmation. While previous nominees to the Supreme Court had been confirmed or rejected by a simple up-or-down vote on the Senate floor, often on the same day on which the President had sent the nomination to the Senate, a then-unprecedented four months lapsed between Wilson's nomination of Brandeis and the Senate's final confirmation vote.<ref name=NPR>{{Cite news |url=https://www.npr.org/templates/story/story.php?storyId=106528133 |title=A History of Supreme Court Confirmation Hearings |date=July 12, 2009 |work=[[NPR]] |access-date=January 28, 2024 |archive-date=January 15, 2012 |archive-url=https://web.archive.org/web/20120115015609/http://www.npr.org/templates/story/story.php?storyId=106528133 |url-status=live }}</ref> |
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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."<ref name=Strum/>{{rp|120-121}} |
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What Brandeis's opponents most objected to was his "radicalism." The ''[[Wall Street Journal]]'' wrote of Brandeis, "In all the anti-corporation agitation of the past, one name stands out... where others were radical, he was rabid."<ref name=Klebanow/> And the ''New York Times'' claimed that having been a noted "reformer" for so many years, he would lack the "dispassionate temperament that is required of a judge."<ref name=Todd>Todd, Alden L. ''Justice on Trial: The Case of Louis D. Brandeis'', McGraw-Hill (1964)</ref>{{rp|73}} Brandeis's successor, [[William O. Douglas]], many years later, wrote that the nomination of Brandeis "frightened the Establishment" because he was "a militant crusader for social justice."<ref name="Douglas" /> |
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The strategy worked, and the Oregon law was upheld. Justice [[David Josiah Brewer|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" .<ref name=Mason/>{{rp|250-253}} <ref name=Brief>Brandeis, Louis. [http://www.law.louisville.edu/library/collections/brandeis/node/235 The Brandeis Brief], ''Muller v. Oregon'' (208 US 412)</ref> As [[William O. Douglas|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."<ref name=NYT_Douglas/> |
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According to the legal historian Scott Powe, much of the opposition to Brandeis's appointment also stemmed from "blatant anti-semitism."<ref name=NPR/> Taft would accuse Brandeis of using his Judaism to curry political favor, and Wickersham would refer to Brandeis's supporters and Taft's critics as "a bunch of Hebrew uplifters."<ref>Afran, Bruce, & Garber, Robert A. (2005). ''Jews on Trial.'' pp. 157–158.</ref> Senator [[Henry Cabot Lodge]] privately complained, "If it were not that Brandeis is a Jew, and a German Jew, he would never have been appointed".<ref>Afran, Bruce, & Garber, Robert A. (2005). ''Jews on Trial.'' p. 154.</ref> |
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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.<ref>Powers, Stephen, and Rothman, Stanley. ''The Least Dangerous Branch?: Consequences of Judicial Activism'', Smith College, Greenwood Publishing Group (2002)</ref> John Vile adds that this new "Brandeis Brief" was increasingly used, most notably in the ''[[Brown v. Board of Education]]'' case in 1954 that desegregated public schools.<ref name=Vile/>{{rp|123}} |
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Those in favor of seeing him join the court were just as numerous and influential. Brandeis had many friends who admired his legal acumen in fighting for progressive causes. They mounted a national publicity campaign that marginalized anti-semitic slurs in the legal profession.<ref>Erin Coyle, Elisabeth Fondren, and Joby Richard. "Advocacy, Editorial Opinion, and Agenda Building: How Publicity Friends Fought for Louis D. Brandeis’s 1916 Supreme Court Confirmation." ''American Journalism'' 37.2 (2020): 165–190.</ref> Supporters included attorneys, social workers, and reformers with whom he had worked on cases, and they testified eagerly on his behalf. Harvard law professor [[Roscoe Pound]] told the committee that "Brandeis was one of the great lawyers" and predicted 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."<ref name=Todd/>{{rp|208}} |
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== Supporting President Wilson == |
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In May, when the Senate Judiciary Committee asked the Attorney General to provide the letters of endorsement that traditionally accompanied a Supreme Court nomination, Attorney General [[Thomas Watt Gregory]] found that there were none. Wilson had made the nomination on the basis of personal knowledge. In reply to the committee, Wilson wrote a letter to the chairman, Senator [[Charles Culberson]], testifying to his own personal estimation of the nominee's character and abilities. He called his nominee's advice "singularly enlightening, singularly clear-sighted and judicial, and, above all, full of moral stimulation." He added: |
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[[File:Woodrow Wilson (Nobel 1919).png|thumb| President Woodrow Wilson, 1919]] |
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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 Progressive Party 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 unfair business practices that made them possible.<ref name=Link>Link, Arthur S. ''Woodrow Wilson and the Progressive Era, 1910-1917'', Harper and Row (1954)</ref>{{rp|1-24}} |
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{{blockquote|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.<ref>{{cite book|author=Woodrow Wilson |title=Selected Addresses and Public Papers of Woodrow Wilson |url=https://archive.org/details/selectedaddress00hartgoog |year=1918 |publisher=Boni and Liveright, Inc. |page=[https://archive.org/details/selectedaddress00hartgoog/page/n143 119]}}</ref>}} |
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On that basis, Brandeis, though "nominally a Republican," supported Wilson and urged his friends and associates to join him.<ref name=Piott/>{{rp|139}} The two men met for the first time at a private conference in New Jersey that August and spent three hours discussing economic issues. Mason notes that 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.'"<ref name=Mason/> Wilson thereafter began using the term "regulated competition," the concept that Brandeis had developed, and made it the essence of his program. In September, Wilson asked Brandeis to "set forth explicitly the actual measures by which competition can be effectively regulated."<ref name=Mason/>{{rp|375-377}} |
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A month later, on June 1, the Senate confirmed his nomination by a vote of 47 to 22. Forty-four Democratic Senators and three Republicans ([[Robert La Follette]], [[George W. Norris|George Norris]], and [[Miles Poindexter]]) voted in favor of confirming Brandeis. Twenty-one Republican senators and one Democrat ([[Francis G. Newlands]]) voted against his confirmation.<ref>[https://query.nytimes.com/gst/abstract.html?res=980CE7D7163BE633A25751C0A9609C946796D6CF "Confirm Brandeis by Vote of 47 to 22," ''The New York Times'', June 2, 1916] {{Webarchive|url=https://web.archive.org/web/20160303211109/http://query.nytimes.com/gst/abstract.html?res=980CE7D7163BE633A25751C0A9609C946796D6CF |date=March 3, 2016 }}, accessed December 31, 2009</ref><ref>{{cite report| last=McMillion| first=Barry J.| date=January 28, 2022| title=Supreme Court Nominations, 1789 to 2020: Actions by the Senate, the Judiciary Committee, and the President| url=https://sgp.fas.org/crs/misc/RL33225.pdf| publisher=Congressional Research Service| location=Washington, D.C.| access-date=February 14, 2022| archive-date=September 3, 2023| archive-url=https://web.archive.org/web/20230903130252/https://sgp.fas.org/crs/misc/RL33225.pdf| url-status=live}}</ref> He was [[Oath of office#Federal judiciary oaths|sworn into office]] on June 5, 1916.<ref name=SCOTUSjustices/> |
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After his victory in the November election, Wilson wrote to Brandeis, "You were yourself a great part of the victory." Wilson considered nominating Brandeis first for Attorney General and later for 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 too controversial a figure to appoint to his cabinet.<ref name=Lief/>{{rp|257-258}} |
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==Supreme Court tenure== |
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Nevertheless, 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, Piott points out, felt that "the banking system needed to be democratized and its currency issued and controlled by the government,"<ref name=Piott/>{{rp|139}} and convinced Congress to enact the [[Federal Reserve Act]] in December 1913.<ref name=Link2>Link, Albert S. ''Wilson: the New Freedom'', Princeton University Press (1953)</ref>{{rp|28-31}} |
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Brandeis served on the U.S. Supreme Court for 23 years.<ref name="Dalin1">{{cite web |last1=Dalin |first1=David G. |title=The Appointment of Louis D. Brandeis, First Jewish Justice on the Supreme Court |url=http://bir.brandeis.edu/bitstream/handle/10192/31435/LDB100Dalin.pdf?isAllowed=y&sequence=1 |website=bir.brandeis.edu |publisher=Brandeis University |archive-url=https://web.archive.org/web/20190412031118/http://bir.brandeis.edu/bitstream/handle/10192/31435/LDB100Dalin.pdf?isAllowed=y&sequence=1 |archive-date=April 12, 2019 |date=2016}}</ref> On the court, Brandeis continued to be a strong voice for progressivism.<ref name="BurtGerber">{{cite web |last1=Gerber |first1=Edward F. |last2=Burt |first2=Zachary |title=A Consequential Friendship: President Wilson and Supreme Court Justice Louis D. Brandeis |url=https://www.woodrowwilsonhouse.org/wp-content/uploads/2021/07/A-Consequential-Friendship-article_final.pdf |website=woodrowwilsonhouse.org |publisher=Woodrow Wilson House |access-date=August 26, 2022 |archive-date=December 20, 2022 |archive-url=https://web.archive.org/web/20221220163738/https://www.woodrowwilsonhouse.org/wp-content/uploads/2021/07/A-Consequential-Friendship-article_final.pdf |url-status=live }}</ref> He is widely regarded as one of the most important and influential justices in the history of the United States Supreme Court, often being ranked among the very "greatest" justices in the court's history.<ref name="Dalin1"/><ref name="BurtGerber"/> |
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Some have criticized Brandeis for having, as a judge, evaded issues related to [[African-American]]s, since he did not author a single opinion on any cases about race during his twenty-three year tenure, and consistently voted with the court majority including in support of [[Racial segregation in the United States|racial segregation]].<ref>{{Cite journal |last=Bracey |first=Christopher |date=January 1, 2001 |title=Louis Brandeis and the Race Question |url=https://scholarship.law.gwu.edu/faculty_publications/6 |journal=GW Law Faculty Publications & Other Works |access-date=January 2, 2022 |archive-date=January 2, 2022 |archive-url=https://web.archive.org/web/20220102063615/https://scholarship.law.gwu.edu/faculty_publications/6/ |url-status=live}}</ref> |
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In 1913, Brandeis wrote 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]].''<ref name=Money>Brandeis, Louis. [http://www.law.louisville.edu/library/collections/brandeis/node/191 ''Other People's Money - and How the Bankers Use It''], (1914) complete text from Louis D. Brandeis School of Law</ref> He also urged the Wilson administration to develop proposals for new antitrust legislation to give the [[United States Department of Justice|Department of Justice]] the power to enforce [[antitrust]] laws. McCraw writes that he was "one of the architects" of the [[Federal Trade Commission]] and served as Wilson's chief economic adviser from 1912 until 1916. "Above all else," he adds, "Brandeis exemplified the anti-bigness ethic without which there would have been no [[Sherman Act]], no antitrust movement, and no Federal Trade Commission."<ref name=McCraw/>{{rp|82}} |
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While on the Court Brandeis kept politically active behind the scenes, as was then acceptable. He was an advisor to Franklin Roosevelt's New Deal through intermediaries.<ref>{{cite book |author=Richard A. Colignon |title=Power Plays: Critical Events in the Institutionalization of the Tennessee Valley Authority |url=https://books.google.com/books?id=5Zg6had-raAC&pg=PA170 |year=1997 |publisher=SUNY Press |page=170 |isbn=9780791430118 |access-date=July 19, 2016 |archive-date=August 5, 2020 |archive-url=https://web.archive.org/web/20200805075204/https://books.google.com/books?id=5Zg6had-raAC&pg=PA170 |url-status=live}}</ref> Many of his disciples held influential jobs, especially in the Justice Department. Brandeis and [[Felix Frankfurter]] (who served together very briefly on the Court) often collaborated on political issues.<ref>Bruce Allen Murphy, ''The Brandeis/Frankfurter Connection: The Secret Activities of Two Supreme Court Justices'' (Oxford University Press, 1982) p. 343</ref><ref>The famed jurist [[Learned Hand]] "thought it appropriate for a federal judge to offer private advice, as he so frequently did with Theodore Roosevelt, so long as there was no prominent public identification with the cause." See {{cite book |author=Gerald Gunther |title=Learned Hand: The Man and the Judge |url=https://books.google.com/books?id=2tfQCwAAQBAJ&pg=PA202 |year=2010 |page=202 |publisher=Oxford University Press |isbn=9780199703432 |access-date=July 19, 2016 |archive-date=August 5, 2020 |archive-url=https://web.archive.org/web/20200805075058/https://books.google.com/books?id=2tfQCwAAQBAJ&pg=PA202 |url-status=live}}</ref> In October 1918, he helped [[Thomas Garrigue Masaryk]] to create the "Washington Declaration" for the founding of a new independent [[Czechoslovakia]].<ref>Preclík, Vratislav. ''Masaryk a legie (Masaryk and legions)'', váz. kniha, 219 str., vydalo nakladatelství Paris Karviná, Žižkova 2379 (734 01 Karviná) ve spolupráci s Masarykovým demokratickým hnutím (Masaryk Democratic Movement, Prague), 2019, {{ISBN|978-80-87173-47-3}}, pp.124 – 128,140 – 148,184 – 190</ref> |
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== Nominated to the Supreme Court == |
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On January 29, 1916, Wilson "surprised the nation" by nominating Brandeis to become a member of the [[U.S. Supreme Court]].<ref>''New York Times'': [http://query.nytimes.com/gst/abstract.html?res=950DE3DB103FE233A2575AC2A9679C946796D6CF Brandeis Named for Highest Court," January 29, 1916]. Retrieved February 21, 2010.</ref> However, his nomination was bitterly contested and denounced by conservative Republicans, including former president (and future [[Chief Justice of the United States|Chief Justice]]) [[William Howard Taft]], whose credibility was damaged by Brandeis in court battles and at one point calling him a "[[muckraker]]."<ref name=Mason/>{{rp|470}} Further opposition came from the legal profession, including former [[Attorney General of the United States|Attorney General]] [[George W. Wickersham]] and former presidents of the [[American Bar Association]], such as ex-Senator and [[United States Secretary of State|Secretary of State]] [[Elihu Root]] of New York, claiming he was "unfit" to serve on the Supreme Court.<ref name=Mason/>{{rp|470-475}} |
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===Leading cases=== |
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The controversy surrounding Brandeis's nomination was so great that the [[United States Senate Committee on the Judiciary|Senate Judiciary Committee]], for the first time in its history, held a public [[Confirmation hearing#United States|hearing]] on the nomination, allowing witnesses to appear before the committee and offer testimony both in support of and in opposition to Brandeis's confirmation. While previous nominees to the Supreme Court had been confirmed or rejected by a simple up-or-down vote on the Senate floor—often on the same day on which the President had sent the nomination to the Senate—a then-unprecedented four months lapsed between Wilson's nomination of Brandeis and the Senate's final confirmation vote.<ref name=NPR>http://www.npr.org/templates/story/story.php?storyId=106528133 "National Public Radio: A History of Supreme Court Confirmation Hearings"</ref> |
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====''Gilbert v. Minnesota'' (1920) – Freedom of speech==== |
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There was a strong conservative streak in the U.S. beginning with [[World War I]] and into the 1920s, and this conservatism was reflected in decisions of the Supreme Court. Both Brandeis and Justice [[Oliver Wendell Holmes Jr.]] often dissented and became known for consistently challenging the majority's view. (However, both men approved the [[Selective Draft Law Cases]] which upheld the constitutionality of [[conscription]], the restrictive ''[[Schenck v. United States]]'' decision in 1919 and the pro-sterilization ''[[Buck v. Bell]]'' decision in 1927). These dissents were most noteworthy in cases dealing with the free speech rights of defendants who had expressed opposition to the military draft. Justice Holmes developed the concept of "[[clear and present danger]]" as the test any restriction on speech had to meet. Both Holmes and Brandeis used this doctrine in other cases. Vile points out that 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."<ref name=Vile/>{{rp|128}} And according to legal historian John Raeburn Green, Brandeis's philosophy influenced Justice Holmes himself, and writes that "Justice Holmes's 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."<ref>Green, John Raeburn. ''The Supreme Court, the Bill of Rights, and the States'', 97 Univ. of Pennsylvania Law Review, 608, 630 (1949)</ref> |
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One such case was ''[[Gilbert v. Minnesota]]'' (1920) which dealt with a state law prohibiting 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. ... [T]he 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."<ref name=Gilbert>[http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=254&page=334 ''Gilbert v. Minnesota''] {{Webarchive|url=https://web.archive.org/web/20110606113107/http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=254&page=334 |date=June 6, 2011 }}, Decided December 13, 1920, full text</ref> |
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"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."<ref name=Klebanow/> 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."<ref name=Todd>Todd, Alden L. ''Justice on Trial: The Case of Louis D. Brandeis'', McGraw-Hill (1964)</ref>{{rp|73}} [[Justice William O. Douglas]], many years later, wrote that the nomination of Brandeis "frightened the Establishment" because he was "a militant crusader for social justice."<ref name=NYT_Douglas>Douglas, William O. [http://select.nytimes.com/gst/abstract.html?res=F20A14FF3E581B728DDDAC0894DF405B848AF1D3&scp=1&sq=Louis+Brandeis%3A+Dangerous&st=p "Louis Brandeis: Dangerous Because Incorruptible"] Book review of ''Justice on Trial'', ''New York Times'', July 5, 1964</ref> |
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Legal author [[Ken Gormley (academic)|Ken Gormley]] says 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."<ref name=Gormley>Gormley, Ken, and Richardson, Elliot ''Archibald Cox: Conscience of a Nation'', Da Capo Press, (1999)</ref> In 1969, in ''[[Stanley v. Georgia]]'', Justice [[Thurgood Marshall|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 v. United States|Olmstead]]'' dissent and his ''[[Whitney v. California|Whitney]]'' concurrence, and adding his own conclusions from the case at hand, which dealt with the issue of viewing pornography at home: |
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According to legal historian Scot Powe, much of the opposition to Brandeis' appointment also stemmed from "blatant anti-semitism.".<ref name=NPR/> Taft would accuse Brandeis of using his Judaism to curry political favor, and Wickersham would refer to Brandeis' supporters (and Taft's critics) as "a bunch of Hebrew uplifters."<ref>Afran, Bruce, & Garber, Robert A. (2005). ''Jews on Trial.'' pp. 157-58.</ref> Senator [[Henry Cabot Lodge]] privately complained that "If it were not that Brandeis is a Jew, and a German Jew, he would never have been appointed[.]"<ref>Afran, Bruce, & Garber, Robert A. (2005). ''Jews on Trial.'' p. 154.</ref> |
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{{blockquote|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.}} |
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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." <ref name=Todd/>{{rp|208}} |
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====''Underwood Typewriter Co. v. Chamberlain'' (1920) – States' right to tax income==== |
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In May, when the Senate Judiciary Committee asked the Attorney General to provide the letters of endorsement that traditionally accompanied a Supreme Court nomination, Attorney General [[Thomas Watt Gregory|Gregory]] found there were none. President Wilson had made the nomination on the basis of personal knowledge. In reply to the Committee, President Wilson wrote a letter to the Chairman, Senator [[Charles Allen Culberson|Culberson]], testifying to his own personal estimation of the nominee's character and abilities. He called his nominee's advice "singularly enlightening, singularly clear-sighted and judicial, and, above all, full of moral stimulation." He added:<ref>''New York Times'', May 9, 1916, [http://query.nytimes.com/gst/abstract.html?res=980DE3DB113FE233A2575AC0A9639C946796D6CF "President Urges Brandeis on Senate"], letter reprinted in article</ref> |
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The first modern state income tax was adopted by Wisconsin in 1911 (in effect in 1912).<ref name=Comstock>Comstock, Alzada (1921). State Taxation of Personal Incomes. Volume CI, Number 1, or Whole Number 229, of Studies in History, Economics and Public Law edited by the Faculty of Political Science of Columbia University. New York: Columbia University, pgs 18–26.</ref> It wasn't long before the Court had a chance to consider the tax's Constitutionality. Justice Brandeis wrote the unanimous opinion in ''Underwood Typewriter Co. v. Chamberlain'' (254 U.S. 113 (1920)). In ''Underwood'', Justice Brandeis wrote that the states could tax the income of corporations doing a multistate business as long as the state taxed only the state's apportioned share of the corporation's income. He also first articulated what ultimately came to be known as the unitary business principle, when he wrote for the Court "The profits of the corporation were largely earned by a series of transactions beginning with manufacture in Connecticut and ending with sale in other states. In this, it was typical of a large part of the manufacturing business conducted in the state.... [The legislature] therefore adopted a method of apportionment which, for all that appears in this record, reached, and was meant to reach, only the profits earned within the state." (''Underwood'', 254 U.S. at 120–121.)<ref>{{cite web |url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4102356 |title=See, too, a discussion of the case in a State Tax Notes Letter to the Editor from Michale Fatale, General Counsel for the Massachusetts Department of Revenue, Fatale, Michael T., Justice Brandeis and State Taxation (April 25, 2022). State Tax Notes, Volume 104, May 2, 2022 |date=April 25, 2022 |ssrn=4102356 |access-date=May 18, 2022 |last1=Fatale |first1=Michael T. |archive-date=May 18, 2022 |archive-url=https://web.archive.org/web/20220518172001/https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4102356 |url-status=live }}</ref> It may be worth noting that although the [[Underwood Typewriter Company]] no longer is in existence, some of their typewriters may be found at the [[Charles River Museum of Industry & Innovation]] in Waltham, Massachusetts—less than two miles from [[Brandeis University]]. |
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====''Whitney v. California'' (1927) – Freedom of speech==== |
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: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. |
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{{main|Whitney v. California}} |
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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."<ref name=Lewis>Lewis, Anthony. ''Make No Law: The Sullivan case and the First Amendment'', Random House, (1991)</ref>{{rp|85}} In their concurring opinion, they wrote: |
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A month later, on June 1, 1916, the Senate officially [[Appointment and confirmation to the Supreme Court of the United States#Confirmation|confirmed]] his nomination by a vote of 47 to 22. Forty four Democratic Senators and three Republicans ([[Robert M. La Follette, Sr.|La Follette]], [[George W. Norris|Norris]], and [[Miles Poindexter|Poindexter]]) voted in favor of confirming Brandeis. Twenty one Republican Senators and one Democrat ([[Francis G. Newlands]]) voted against his confirmation.<ref>[http://query.nytimes.com/gst/abstract.html?res=980CE7D7163BE633A25751C0A9609C946796D6CF "Confirm Brandeis by Vote of 47 to 22," June 2, 1916], accessed Dec. 31, 2009</ref> |
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{{blockquote|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 ...}} |
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== Leading cases == |
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=== Gilbert v. Minnesota (1920) - Freedom of speech === |
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====''Olmstead v. United States'' (1928) – Right of privacy==== |
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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 Jr.]] 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. Vile points out that 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."<ref name=Vile/>{{rp|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."<ref>Green, John Raeburn. ''The Supreme Court, the Bill of Rights, and the States'', 97 Univ. of Pennsylvania Law Review, 608, 630 (1949)</ref> |
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{{Main|Olmstead v. United States}} |
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In his widely cited [[dissenting opinion]] in ''[[Olmstead v. United States]]'' (1928), Brandeis relied on thoughts he developed in his 1890 Harvard Law Review article "The Right to Privacy."<ref name="Harvard Law Review article">{{cite web|url=http://faculty.uml.edu/sgallagher/Brandeisprivacy.htm|title=Right to Privacy |access-date=July 9, 2013|archive-date=May 19, 2013|archive-url=https://web.archive.org/web/20130519194653/http://faculty.uml.edu/sgallagher/Brandeisprivacy.htm|url-status=live}}</ref> 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 to the United States Constitution|Fourth Amendment]] which disallowed unreasonable search and seizure. Brandeis wrote in his lengthy dissent: |
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{{blockquote|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.<ref name=Olmstead>[http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=277&invol=438 ''Olmstead v. United States''] {{Webarchive|url=https://web.archive.org/web/20090311063558/http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=277&invol=438 |date=March 11, 2009 }}, 277 U.S. 438 (1928), complete text including dissent</ref>}} |
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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."<ref name=Gilbert>[http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=254&page=334 ''Gilbert v. Minnesota''], Decided Dec. 13, 1920, full text</ref> |
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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 ''[[United States v. Harris]]'', where his opinion wove together the speeches of [[James Otis Jr.|James Otis]], [[James Madison]], [[John Adams]], and Brandeis's ''Olmstead'' opinion, proclaiming the right of privacy as "second to none in the [[United States Bill of Rights|Bill of Rights]]"<ref name=McIntosh/><ref>{{cite journal |last1=Freund |first1=Paul A. |title=Mr. Justice Frankfurter |journal=The University of Chicago Law Review |date=Winter 1959 |volume=26 |issue=2 |pages=209–210 |url=https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=3117&context=uclrev |access-date=February 1, 2021 |quote=A decision may turn on whether one gives that amendment a place second to none in the Bill of Rights, or considers it on the whole a kind of a nuisance, a serious impediment in the war against crime. [from Harris dissent] |archive-date=April 23, 2021 |archive-url=https://web.archive.org/web/20210423012659/https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=3117&context=uclrev |url-status=live }}</ref> |
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Legal author [[Ken Gormley (academic)|Ken Gormley]] feels 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 the United States Constitution|First Amendment]] to assure a freedom of speech within the four brick walls of the citizen's residence."<ref name=Gormley>Gormley, Ken, and Richardson, Elliot''Archibald Cox: Conscience of a Nation'', Da Capo Press, (1999)</ref> And by 1969, in ''[[Stanley v. Georgia]]'', Justice [[Thurgood Marshall|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 v. United States|Olmstead]]'' dissent and his ''[[Whitney v. California|Whitney]]'' concurrence, and adding his own conclusions from the case at hand, which dealt with the issue of viewing pornography at home: |
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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."<ref name=Finkelman>Finkelman, Paul. ''Encyclopedia of American Civil Liberties'', CRC Press, (2006)</ref>{{rp|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.<ref name=McIntosh/>{{rp|26}} |
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: "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." |
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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 [[Potter Stewart]] wrote the opinion overturning ''Olmstead'' in ''[[Katz v. U.S.]]'' Wayne McIntosh adds, "A quarter-century after his death, another component of Justice Brandeis's privacy design was enshrined in American law."<ref name=McIntosh/> |
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=== Whitney v. California (1927) - Freedom of speech === |
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As McIntosh notes, "the spirit, if not the person, of Louis Brandeis, has continued to stimulate the constitutional mutation of a 'right to privacy.'"<ref name=McIntosh/> 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, [[John Marshall Harlan II|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."<ref>''Griswold v. Connecticut'', 381 U.S. 479 (1965)</ref> Further, in 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."<ref>''Roe v. Wade'', 410 U.S. 113 (1973)</ref> |
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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."<ref name=Lewis>Lewis, Anthony. ''Make No Law: The Sullivan case and the First Amendment'', Random House, (1991)</ref>{{rp|85}} In their concurring opinion, they wrote: |
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====''Packer Corporation v. Utah'' (1932) – Captive audience and free speech==== |
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: "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. . . " |
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In ''Packer Corporation v. Utah'' (1932), Brandeis was to advance an exception to the right of free speech. In this case, a unanimous Court, led by Brandeis, found a clear distinction between advertising placed in newspapers and magazines with those placed on public billboards. The case was a notable exception and dealt with a conflict between widespread First Amendment rights with the public's right of privacy and advanced a theory of the "captive audience." Brandeis delivered the opinion of the Court to advance privacy interests: |
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{{blockquote|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.}} |
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=== Olmstead v. United States (1928) - Right of privacy === |
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{{Main|Olmstead v. United States}} |
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In his widely cited [[dissenting opinion]] in ''[[Olmstead v. United States]]'' (1928), Brandeis relied on thoughts he developed in his [[Louis Brandeis#Creating a Right to Privacy|''Harvard Law Review'' article]] in 1890. But in his dissent, he now changed the focus whereby he urged making personal privacy matters more relevant to [[constitutional law]], going so far as saying "the government [was] identified . . . as a potential privacy invader." At issue in ''Olmstead'' was the use of wiretap technology to gather evidence. Referring to this "dirty business," he then tried to combine the notions of civil privacy and the "right to be left alone" with the right offered by the [[Fourth Amendment to the United States Constitution|Fourth Amendment]] which disallowed unreasonable search and seizure. Brandeis wrote in his lengthy dissent: |
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====''Burnet v. Coronado Oil & Gas Co.'' (1932) – Stare decisis==== |
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: "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." <ref name=Olmstead>[http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=277&invol=438 ''Olmstead v. United States''], 277 U.S. 438 (1928), complete text including dissent</ref> |
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Brandeis forever changed the way people think about ''[[stare decisis]]'', one of the most distinctive principles of the common law legal system. In his widely cited dissenting opinion in ''Burnet v. Coronado Oil & Gas Co.'' (1932), Brandeis "catalogued the Court’s actual overruling practices in such a powerful manner that his attendant ''stare decisis'' analysis immediately assumed canonical authority."<ref name="Starger_Page21">{{cite book |last1=Starger |first1=Colin |editor1-last=Peters |editor1-first=Christopher J. |title=Precedent in the United States Supreme Court |date=2013 |publisher=Springer Science+Business Media |location=Dordrecht |isbn=978-94-007-7950-1 |pages=19–46 |chapter=The Dialectic of Stare Decisis Doctrine |chapter-url=https://books.google.com/books?id=zAbFBAAAQBAJ&pg=PA21 |access-date=May 25, 2020 |archive-date=March 8, 2021 |archive-url=https://web.archive.org/web/20210308100630/https://www.google.com/books/edition/Precedent_in_the_United_States_Supreme_C/zAbFBAAAQBAJ?hl=en&gbpv=1&pg=PA21&printsec=frontcover |url-status=live }} Available via SpringerLink.</ref> Brandeis wrote: |
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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, Jr.|James Otis]], [[James Madison]], [[John Adams]], and Brandeis's ''Olmstead'' opinion, proclaiming the right of privacy as "second to none in the [[United States Bill of Rights|Bill of Rights]]<ref name=McIntosh/>{{rp|26}} |
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{{blockquote|''Stare decisis'' is usually the wise policy, because, in most matters, it is more important that the applicable rule of law be settled than that it be settled right.<ref name="Starger_Page27">{{cite book |last1=Starger |first1=Colin |editor1-last=Peters |editor1-first=Christopher J. |title=Precedent in the United States Supreme Court |date=2013 |publisher=Springer Science+Business Media |location=Dordrecht |isbn=978-94-007-7950-1 |pages=19–46 |chapter=The Dialectic of Stare Decisis Doctrine |chapter-url=https://books.google.com/books?id=zAbFBAAAQBAJ&pg=PA27 |access-date=May 25, 2020 |archive-date=March 8, 2021 |archive-url=https://web.archive.org/web/20210308023849/https://www.google.com/books/edition/Precedent_in_the_United_States_Supreme_C/zAbFBAAAQBAJ?hl=en&gbpv=1&pg=PA27&printsec=frontcover |url-status=live }} Available via SpringerLink.</ref>}} |
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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."<ref name=Finkelman>Finkelman, Paul. ''Encyclopedia of American Civil Liberties'', CRC Press, (2006)</ref>{{rp|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.<ref name=McIntosh/>{{rp|26}} |
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The rule of ''stare decisis'' descended from Brandeis's formulation would later split into strong and weak forms as a result of the disagreement between Chief Justice [[William Rehnquist]] and Associate Justice [[Thurgood Marshall]] in ''[[Payne v. Tennessee]]'' (1991).<ref name="Starger_Page29">{{cite book |last1=Starger |first1=Colin |editor1-last=Peters |editor1-first=Christopher J. |title=Precedent in the United States Supreme Court |date=2013 |publisher=Springer Science+Business Media |location=Dordrecht |isbn=978-94-007-7950-1 |pages=19–46 |chapter=The Dialectic of Stare Decisis Doctrine |chapter-url=https://books.google.com/books?id=zAbFBAAAQBAJ&pg=PA29 |access-date=May 26, 2020 |archive-date=March 8, 2021 |archive-url=https://web.archive.org/web/20210308192813/https://www.google.com/books/edition/Precedent_in_the_United_States_Supreme_C/zAbFBAAAQBAJ?hl=en&gbpv=1&pg=PA29&printsec=frontcover |url-status=live }} Available via SpringerLink.</ref> |
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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 [[Potter Stewart]] wrote 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."<ref name=McIntosh/> |
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===New Deal cases=== |
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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'." <ref name=McIntosh/> 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, [[John Marshall Harlan II|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."<ref>''Griswold v. Connecticut'', 381 U.S. 479 (1965)</ref> 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."<ref>''Roe v. Wade'', 410 U.S. 113 (1973)</ref> |
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Along with [[Benjamin Cardozo]] and [[Harlan F. Stone]], Brandeis was considered to be in the liberal wing of the court—the so-called [[Three Musketeers (Supreme Court)|Three Musketeers]] who stood against the conservative [[Four Horsemen (Supreme Court)|Four Horsemen]]. |
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====''Louisville v. Radford'' (1935) – limiting presidential discretion==== |
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=== Packer Corporation v. Utah (1932) - Captive audience and free speech === |
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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."<ref name=Vile/>{{rp|129}} In one case, ''[[Louisville v. Radford]]'' (1935), he spoke for a unanimous court when he declared the [[Frazier-Lemke Act]] unconstitutional. The act prevented mortgage-holding banks from foreclosing on their property for five years and forced struggling farmers to continue paying based on a court-ordered schedule. "The [[Fifth Amendment to the United States Constitution|Fifth Amendment]]," he declared, "commands that however great the Nation's need, private property shall not be thus taken over without just compensation." |
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====''Schechter Poultry Corp. v. United States'' (1935) – NIRA is unconstitutional==== |
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In ''[[Packer Corporation v. Utah]]'' (1932), Brandeis was to advance an exception to the right of free speech. In this case, a unanimous Court, led by Brandeis, found a clear distinction between advertising placed in newspapers and magazines with those placed on public billboards. The case was a notable exception and dealt with a conflict between widespread First Amendment rights with the public's right of privacy and advanced a theory of the "captive audience." Brandeis delivered the opinion of the Court to advance privacy interests: |
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{{main|Schechter Poultry Corp. v. United States}} |
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In ''Schechter Poultry Corp. v. 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.<ref name=Klebanow/> 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 US history."<ref name=Gordon>[[John Steele Gordon|Gordon, John Steele]]. [http://www.commentarymagazine.com/article/the-economic-contradictions-of-obama-ism/ "The Economic Contradictions of Obama-ism"] {{Webarchive|url=https://web.archive.org/web/20131105154050/http://www.commentarymagazine.com/article/the-economic-contradictions-of-obama-ism/ |date=November 5, 2013 }}, ''Commentary magazine'', April 2009, pgs. 23–26</ref> Speaking to aides of Roosevelt, Justice Louis Brandeis remarked that, "This is the end of this business of centralization, and I want you to go back and tell the president that we're not going to let this government centralize everything."<ref>Harry Hopkins, "Statement to Me by Thomas Corcoran Giving His Recollections of the Genesis of the Supreme Court Fight," April 3, 1939, typescript in Harry Hopkins Papers</ref> |
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: "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" |
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Brandeis also opposed Roosevelt's [[Judiciary Reorganization Bill of 1937|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," leading historian Nelson Dawson to conclude that "Brandeis ... was not alone in thinking that Roosevelt's scheme threatened the integrity of the institution."<ref name=Dawson>Dawson, Nelson L. ed., ''Brandeis and America'', Univ. Press of Kentucky (1989)</ref>{{rp|50–53}} |
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== New Deal cases == |
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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 (Supreme Court)|Three Musketeers]] who stood against the conservative [[Four Horsemen (Supreme Court)|Four Horsemen]]. |
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=== |
====''Erie Railroad Co. v. Tompkins'' (1938) – Federal versus state laws==== |
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{{main|Erie Railroad Co. v. Tompkins}} |
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His last important judicial opinion was also one of the most significant of his career, according to Klebanow and Jonas. In ''Erie Railroad Co. v. Tompkins'' (1938), the Supreme Court addressed the issue of whether federal judges apply state law or federal [[common law]] where the parties to a lawsuit are from different states. Writing for the Court, Brandeis overruled the ninety-six-year-old doctrine of ''[[Swift v. Tyson]]'' (1842), and held that there was no such thing as a "federal general common law" in cases involving diversity jurisdiction. This concept became known as the [[Erie Doctrine|''Erie'' Doctrine]]. Applying the ''Erie'' Doctrine, federal courts now must conduct a choice of law analysis, which generally requires that the courts apply the law of the state where the injury or transaction occurred. "This ruling," concluded Klebanow and Jonas, "fits in well with Brandeis's goals of strengthening the states and reversing the long-term trend toward centralization and bigness."<ref name=Klebanow/> |
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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."<ref name=Vile/>{{rp|129}} In one case, ''[[Louisville v. Radford]]'' (1935), he spoke for a unanimous court when he declared the Frazier-Lemke Act unconstitutional. The act prevented mortgage-holding banks from foreclosing on their property for five years and forced struggling farmers to continue paying based on a court-ordered schedule. "The [[Fifth Amendment to the United States Constitution|Fifth Amendment]]," he declared, "commands that however great the Nation's need, private property shall not be thus taken over without just compensation." |
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=== Other cases === |
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=== Schechter Brothers v. The United States (1935) - NIRA is unconstitutional === |
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In 1919, Brandeis sided with the unanimous majority on the court in ruling that [[Eugene V. Debs]]' protests against US involvement in [[World War I]] violated the [[Espionage Act of 1917]] in ''[[Debs v. United States]]'', though later that year he had an apparent change of heart in ''[[Abrams v. United States]]'' when he dissented with the majority opinion to express that political dissent was protected by the First Amendment.<ref>{{Cite web|last=Roos|first=Dave|title=The Sedition and Espionage Acts Were Designed to Quash Dissent During WWI|url=https://www.history.com/news/sedition-espionage-acts-woodrow-wilson-wwi|access-date=January 2, 2022|website=HISTORY|date=September 21, 2020|language=en|archive-date=January 2, 2022|archive-url=https://web.archive.org/web/20220102061903/https://www.history.com/news/sedition-espionage-acts-woodrow-wilson-wwi|url-status=live}}</ref><ref>{{Cite web|title=Free speech wasn't so free 103 years ago, when 'seditious' and 'unpatriotic' speech was criminalized in the US|url=https://www.sc.edu/uofsc/posts/2021/05/conversation_free_speech.php|access-date=January 2, 2022|website=University of South Carolina|language=en|archive-date=January 2, 2022|archive-url=https://web.archive.org/web/20220102061905/https://www.sc.edu/uofsc/posts/2021/05/conversation_free_speech.php|url-status=live}}</ref> |
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In ''[[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.<ref name=Klebanow/> 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." <ref name=Gordon>Gordon, John Steele. [http://www.commentarymagazine.com/viewarticle.cfm/the-economic-contradictions-of-obama-ism-15098 "The Economic Contradictions of Obama-ism"], ''Commentary magazine'', April, 2009, pgs.23-26</ref> Speaking to aides of Roosevelt, Justice Louis Brandeis remarked that, “This is the end of this business of centralization, and I want you to go back and tell the president that we're not going to let this government centralize everything."<ref>Harry Hopkins, “Statement to Me by Thomas Corcoran Giving His Recollections of the Genesis of the Supreme Court Fight,” April 3, 1939, typescript in Harry Hopkins Papers</ref> |
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==Zionism== |
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Brandeis also opposed Roosevelt's [[Judiciary Reorganization Bill of 1937|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," leading historian Nelson Dawson to conclude that "Brandeis . . . was not alone in thinking that Roosevelt's scheme threatened the integrity of the institution."<ref name=Dawson>Dawson, Nelson L. ed., ''Brandeis and America'', Univ. Press of Kentucky (1989)</ref>{{rp|50-53}} |
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Relatively late in life the secular Brandeis also became a prominent figure in the [[Zionist]] movement. He became active in the [[Federation of American Zionists]] in 1912, as a result of a conversation with [[Jacob de Haas]], according to some.<ref>Walter Laqueur, ''A History of Zionism'', p.159; Peter Grose, ''Israel in the Mind of America'', p. 48</ref> His involvement provided the nascent American Zionist movement one of the most distinguished men in American life and a friend of the next president. Over the next several years he devoted a great deal of his time, energy, and money to championing the cause. With the outbreak of [[World War I]] in Europe, the divided allegiance of its membership rendered the [[World Zionist Organization]] impotent.<ref>Michael Brown, ''[https://books.google.com/books?id=UEQggnBIUUgC&pg=PA26 The Israeli-American Connection: Its Roots in the Yishuv, 1914–1945] {{Webarchive|url=https://web.archive.org/web/20200805074950/https://books.google.com/books?id=UEQggnBIUUgC&pg=PA26& |date=August 5, 2020 }}'', (1996), p. 26 "In early 1914 the USS ''North Carolina'' arrived in Jaffa harbor with money and supplies provided by Schiff, the American Jewish Committee, and the Provisional Executive Committee for General Zionist Affairs, then acting for the WZO, which had been rendered impotent by the war."</ref> American Jews then assumed a larger responsibility independent of Zionists in Europe. The Provisional Executive Committee for Zionist Affairs was established in [[New York City|New York]] for this purpose on August 20, 1914, and Brandeis was elected president of the organization.<ref name="Brandeis PJ&Z"/> As president from 1914 to 1918, Brandeis became the leader and spokesperson of American Zionism. He embarked on a speaking tour in the fall and winter of 1914–1915 to garner support for the Zionist cause, emphasizing the goal of self-determination and freedom for Jews through the development of a Jewish homeland.<ref name=Brandeis4/> |
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Unlike the majority of American Jews at the time, he felt that the re-creation of a Jewish national homeland was one of the key solutions to antisemitism and the "[[Jewish problem]]" in Europe and Russia, while at the same time a way to "revive the Jewish spirit." He explained his belief in the importance of Zionism in a famous speech he gave at a conference of [[Reform Judaism|Reform]] Rabbis in April 1915:<ref name=Brandeis4>Brandeis, Louis. [http://www.law.louisville.edu/library/collections/brandeis/node/234 "The Jewish Problem: How To Solve It"] {{Webarchive|url=https://web.archive.org/web/20090517043548/http://www.law.louisville.edu/library/collections/brandeis/node/234 |date=May 17, 2009 }}, Speech given at a Conference of Eastern Council of Reform Rabbis, April 25, 1915</ref> |
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=== Erie Railroad Co. v. Tompkins (1938) - Federal versus state laws === |
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{{blockquote|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.}} |
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His last important judicial opinion was also one of the most significant of his career, according to Klebanow and Jonas. In [[Erie Railroad Co. v. Tompkins]] (1938), the Supreme Court addressed the issue of whether federal judges apply state law or federal "general law" where the parties to a lawsuit are from different states. Writing for the Court, Brandeis overruled the ninety-six-year-old doctrine of ''[[Swift v. Tyson]]'' (1842), and held that there was no such thing as a "federal general common law" in cases involving diversity jurisdiction. This concept became known as the [[Erie Doctrine|''Erie'' Doctrine]]. Applying the Erie Doctrine, federal courts now must conduct a choice of law analysis, which generally requires that the courts apply the law of the state where the injury or transaction occurred. "This ruling," concluded Klebanow and Jonas, "fits in well with Brandeis's goals of strengthening the states and reversing the long-term trend toward centralization and bigness."<ref name=Klebanow/> |
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He also explained his belief that Zionism and patriotism were compatible concepts and should not lead to charges of "dual loyalty" which worried the rabbis and the dominant [[American Jewish Committee]]: |
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== Zionist leader == |
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Relatively late in life the secular Brandeis also became a prominent [[Zionist]] leader. He became active in the Federation of American Zionists in 1912, as a result of a conversation with [[Jacob de Haas]], according to some.<ref>Walter Laqueur, ''A History of Zionism'', p.159; Peter Grose, ''Israel in the Mind of America'', p.48</ref> His involvement provided the infant Zionist movement one of the most distinguished men in American life and a friend of the next president. Over the next several years he devoted a great deal of his time, energy, and money to spreading the Zionist word. With the outbreak of [[World War I]] in Europe, the divided allegiance of its membership rendered the [[World Zionist Organization|Zionist Organization]]'s in [[Berlin]] impotent.{{Citation needed|date=January 2010}} American Jewry then assumed a larger responsibility independent of the Zionist Executive in Europe. The [[Provisional Executive Committee for Zionist Affairs]] was established in [[New York City|New York]] for this purpose on August 20, 1914, and unexpectedly, Brandeis accepted when unanimously elected to head the organization.{{Citation needed|date=January 2010}} As president from 1914 to 1918, Brandeis became the leader of American Zionism. He embarked on a speaking tour in the fall and winter of 1914-1915 to garner support for the Zionist cause, emphasizing the goal of self-determination and freedom for Jews through the development of a Jewish homeland.<ref name=Brandeis4/> |
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{{blockquote|Let no American imagine that Zionism is inconsistent with Patriotism. Multiple loyalties are objectionable only if they are inconsistent. A man is a better citizen of the United States for being also a loyal citizen of his state, and of his city; or for being loyal to his college. ... Every American Jew who aids in advancing the Jewish settlement in Palestine, though he feels that neither he nor his descendants will ever live there, will likewise be a better man and a better American for doing so. There is no inconsistency between loyalty to America and loyalty to Jewry.<ref name=Brandeis4/>}} |
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Unlike the majority of American Jews at the time, he felt that the re-creation of a Jewish national homeland was one of the key solutions to antisemitism and the "[[Jewish problem]]" in Europe and Russia, while at the same time a way to "revive the Jewish spirit." He explained his belief in the importance of Zionism in a famous speech he gave at a conference of [[Reform Judaism|Reform]] Rabbis in April 1915:<ref name=Brandeis4>Brandeis, Louis. [http://www.law.louisville.edu/library/collections/brandeis/node/234 "The Jewish Problem: How To Solve It"], Speech given at a Conference of Eastern Council of Reform Rabbis, April 25, 1915</ref> |
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Early in the war, Jewish leaders determined that they needed to elect a special representative body to attend the peace conference as spokesman for the religious, national and political rights of Jews in certain European countries, especially to guarantee that Jewish minorities were included wherever minority rights were recognized. Under the leadership of Brandeis, [[Stephen Samuel Wise|Stephen Wise]] and [[Julian Mack]], the Jewish Congress Organization Committee was established in March 1915. The subsequent vehement debate about the idea of a "congress" stirred the feelings of American Jews and acquainted them with the Jewish problem.<ref name="Brandeis PJ&Z"/> Brandeis's efforts to bring in the American Jewish Committee and some other Jewish organizations were unsuccessful; these organizations were quite willing to participate in a conference of appointed representatives, but were opposed to Brandeis's idea of convening a congress of delegates elected by the Jewish population. |
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: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. |
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The following year, however, delegates representing over one million Jews came together in Philadelphia and elected a National Executive Committee with Brandeis as honorary chairman. On April 6, 1917, America entered the war. On June 10, 1917, 335,000 American Jews cast their votes and elected their delegates who, together with representatives of some 30 national organizations, established the [[American Jewish Congress]] on a democratically elected basis,<ref name="Brandeis PJ&Z">{{cite web|url=http://www.hagshama.org.il/en/resources/view.asp?id=1635 |title=Patriot, Judge, and Zionist |access-date=October 27, 2007 |url-status=dead |archive-url=https://web.archive.org/web/20071027065906/http://www.hagshama.org.il/en/resources/view.asp?id=1635 |archive-date=October 27, 2007 }}</ref> but further efforts to organize awaited the end of the war. |
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He also explained his belief that Zionism and patriotism were compatible concepts and should not lead to charges of "dual loyalty" which worried the rabbis and the dominant [[American Jewish Committee]]: |
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Brandeis also brought his influence to bear on the Wilson administration in the negotiations leading up to the [[Balfour Declaration]] and the [[Paris Peace Conference, 1919|Paris Peace Conference]]. In July 1919 he visited Palestine. |
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Later in 1919 Brandeis broke with [[Chaim Weizmann]], the leader of European Zionism. In 1921 Weizmann's candidates, headed by [[Louis Lipsky]], defeated Brandeis's for political control of the [[Zionist Organization of America]]. Brandeis resigned from the ZOA, along with his closest associates Rabbi [[Stephen S. Wise]], Judge Julian W. Mack and [[Felix Frankfurter]]. His ouster was devastating to the movement, and by 1929 there were no more than 18,000 members in the ZOA.{{Citation needed|date=July 2013}} Nonetheless, he remained active in [[philanthropy]] directed at Jews in Palestine. In the summer of 1930, these two factions and visions of Zionism would come to a compromise largely on Brandeis's terms, with a changed leadership structure for the ZOA.<ref>[https://web.archive.org/web/20100715231721/http://www.time.com/time/magazine/article/0,9171,739959,00.html Religion: Zionist Chiefs], ''[[Time (magazine)|Time]]'', July 28, 1930</ref> In the late 1930s he endorsed immigration to Palestine in an effort to help European Jews escape genocide when Britain denied entry to more Jews.<ref>Urofsky (2009)</ref> |
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:Let no American imagine that Zionism is inconsistent with Patriotism. Multiple loyalties are objectionable only if they are inconsistent. A man is a better citizen of the United States for being also a loyal citizen of his state, and of his city; or for being loyal to his college.... Every American Jew who aids in advancing the Jewish settlement in Palestine, though he feels that neither he nor his descendants will ever live there, will likewise be a better man and a better American for doing so. There is no inconsistency between loyalty to America and loyalty to Jewry.<ref name=Brandeis4/> |
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== Death == |
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Early in the war, Jewish leaders determined that they needed to elect a special representative body to attend the peace conference as spokesman for the religious, national and political rights of the Jews in certain European countries, especially to guarantee that Jewish minorities were included wherever minority rights were recognized. Under the leadership of Brandeis, [[Stephen Wise]] and [[Julian Mack]], the Jewish Congress Organization Committee was established in March 1915.{{Citation needed|date=January 2010}} The subsequent vehement debate about the idea of a "congress" stirred American Jewry and acquainted it with the Jewish problem.{{Citation needed|date=January 2010}} Brandeis’ efforts to bring in the American Jewish Committee and some other Jewish organizations were unsuccessful, but a year later, delegates representing over one million Jews came together in Philadelphia and formulated Jewish demands for submission to the [[Paris Peace Conference, 1919|Paris Peace Conference]] and elected a National Executive Committee with Brandeis as honorary chairman. On April 6, 1917, America entered the war. On June 10, 1917, 335,000 American Jews cast their votes and elected their delegates who, together with representatives of some 30 national organizations, established the [[American Jewish Congress]] on a democratically elected basis,<ref>[http://web.archive.org/web/20071027065906/http://www.hagshama.org.il/en/resources/view.asp?id=1635 Patriot, Judge, and Zionist]</ref> but further efforts to organize awaited the end of the war. |
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[[File:Retired Supreme Court Justice celebrates 83rd birthday. Washington, D.C., Nov. 13. Celebrating his 83rd birthday today, retired U.S. Supreme Court Justice Louis D. Brandeis is pictured with LCCN2016876609.jpg|thumb|Retired Justice Brandeis with his wife on his 83rd birthday, 1939]] |
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Brandeis retired from the Supreme Court on February 13, 1939, and he died on October 5, 1941, aged 84.<ref name=FJCBrandeis/> Both Brandeis and his wife are interred beneath the portico of the Brandeis School of Law of the [[University of Louisville]], in Louisville, Kentucky.<ref>{{cite web|url=http://www.supremecourthistory.org/04_library/subs_volumes/04_c20_e.html |title=Christensen, George A. (1983) ''Here Lies the Supreme Court: Gravesites of the Justices'', Yearbook |access-date=November 24, 2013 |url-status=dead |archive-url=https://web.archive.org/web/20050903032026/http://www.supremecourthistory.org/04_library/subs_volumes/04_c20_e.html |archive-date=September 3, 2005 }} [[Supreme Court Historical Society]] at [[Internet Archive]].</ref><ref>Christensen, George A., ''Here Lies the Supreme Court: Revisited'', ''Journal of Supreme Court History'', Volume 33 Issue 1, Pages 17–41 (2008).</ref> Brandeis himself made the arrangements that made the law school one of only thirteen Supreme Court repositories in the U.S. His professional papers are archived at the library there.<ref>{{Cite web |url=https://louisville.edu/law/library/special-collections/the-louis-d.-brandeis-collection |title=The Louis D. Brandeis Collection |access-date=April 10, 2024 |website=University of Louisville |archive-date=April 10, 2024 |archive-url=https://web.archive.org/web/20240410115701/https://louisville.edu/law/library/special-collections/the-louis-d.-brandeis-collection |url-status=live }}</ref> |
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==Legacy== |
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Brandeis also brought his influence to bear on the Wilson administration in the negotiations leading up to the [[Balfour Declaration of 1917|Balfour Declaration]] and the Paris Peace Conference. |
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[[File:TIMEMagazine19Oct1925.jpg|thumb|right|''[[Time (magazine)|Time]]'' cover, October 19, 1925]] |
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According to Constitutional Law historian Alfred H. Kelly: |
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:Throughout his long public career, Louis D. Brandeis consistently pursued one major ideal: that of a liberal progressive society based on democracy and social justice. Brandeis early became convinced that the gigantic trusts which by 1900 had come to dominate large segments of American business not only were hopelessly inefficient in a narrow economic sense but also menaced the very existence of political democracy itself….[H]e sought to ameliorate what he called the “curse of bigness” and to establish a new industrial democracy based on a partnership between business, organized labor, and the public….He never challenged the fundamentals of capitalism itself; rather he looked back with nostalgic longing toward the vanished Jeffersonian notion of a self-regulated economic order characterized by competition among a great variety of small entrepreneurs….In his last years on the Court, Brandeis became a fairly consistent judicial protagonist of the New Deal….Before his retirement from the Court, Brandeis was rewarded by seeing the majority justices accept not only the major constitutional premises of the New Deal but also his own positions on First Amendment liberties, on labor legislation, and a judicial abuse of the due process clause. Thus Brandeis emerges finally as a lifelong champion of an open libertarian democratic society….<ref name="Kelly">{{cite book |last1=Kelly |first1=Alfred H. |editor1-last=Garraty |editor1-first=John A. |editor2-last=Sternstein |editor2-first=Jerome L. |title=Encyclopedia of American Biography |date=1996 |publisher=HarperCollins |location=New York |isbn=978-0062700179 |pages=[https://archive.org/details/isbn_9780062700179/page/130/mode/2up 130-132] |edition=2nd |chapter=Brandeis, Louis Dembitz}}</ref> |
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Brandeis lived to see many of the ideas that he had championed become the law of the land. Wages and hours legislation was now accepted as constitutional, and the right of labor to organize was protected by law. His spirited, eloquent defense of free speech and the right of privacy have had a continuing, powerful influence upon the Supreme Court and, ultimately, upon the life of the entire nation. ''[[The Economist]]'' magazine has called him "A [[Robin Hood]] of the law,"<ref>''The Economist'', September 24, 2009 ("Books and Arts" section)</ref> and former Secretary of State [[Dean Acheson]], his early law clerk, was "impressed by a man whose personal code called for ... the zealous molding of the lives of the underprivileged so that paupers might achieve moral growth."<ref>Harper, John Lamberton. ''American Visions of Europe'' Cambridge Univ. Press (1996)</ref>{{rp|246}} |
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In 1919 he broke on issues of structural organization and financial planning with [[Chaim Weizmann]], the leader of European Zionism. Weizmann defeated Brandeis for power and in 1921 Brandeis resigned from the Zionist Organization of America, along with his closest associates Rabbi [[Stephen S. Wise]], Judge Julian W. Mack and [[Felix Frankfurter]]. He remained active in [[philanthropy]] directed at Jews in Palestine. In the late 1930s he endorsed immigration to Palestine in an effort to help European Jews escape genocide when Britain denied entry to more Jews.<ref>Urofsky (2009)</ref> |
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Wayne McIntosh writes of him, "In our national juristic temple, some figures have been accorded near-Olympian reverence ... a part of that legal pantheon is Louis D. Brandeis – all the more so, perhaps because Brandeis was far more than a great justice. He was also a social reformer, legal innovator, labor champion, and Zionist leader ... And it was as a judge that his concepts of privacy and free speech ultimately, if posthumously, resulted in virtual legal sea changes that continue to resonate even today." Former Justice William O. Douglas wrote, "he helped America grow to greatness by the dedications of which he made his life."<ref name="Douglas" /> |
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== Death and legacy == |
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Brandeis retired from the Supreme Court in February 1939, and he died on October 5, 1941, following a heart attack. |
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Michael Fatale, General Counsel for the Massachusetts Department of Revenue<ref>{{cite web |url=https://www.mass.gov/info-details/about-the-massachusetts-department-of-revenue-dor#commissioner's-office- |title=Mass DOR website |access-date=May 18, 2022 |archive-date=May 19, 2022 |archive-url=https://web.archive.org/web/20220519040221/https://www.mass.gov/info-details/about-the-massachusetts-department-of-revenue-dor#commissioner's-office- |url-status=live }}</ref> and Adjunct Professor of state taxation at both [[Boston College Law School]]<ref>{{cite web |url=https://www.bc.edu/bc-web/schools/law/academics-faculty/faculty-directory/michael-fatale.html |title=BC Law School biography |access-date=May 18, 2022 |archive-date=March 13, 2022 |archive-url=https://web.archive.org/web/20220313154517/https://www.bc.edu/bc-web/schools/law/academics-faculty/faculty-directory/michael-fatale.html |url-status=live }}</ref> and [[Boston University School of Law]],<ref>{{cite web |url=https://www.bu.edu/law/profile/michael-t-fatale/ |title=BU School of law biography |access-date=May 18, 2022 |archive-date=September 29, 2023 |archive-url=https://web.archive.org/web/20230929044029/https://www.bu.edu/law/profile/michael-t-fatale/ |url-status=live }}</ref> writes in a Letter to the Editor in State Tax Notes that Justice Brandeis' contributions in the field of State Taxation are underappreciated. Justice Brandeis laid the foundation for the modern approach to state taxation of income in his opinion in the ''Underwood Typewriter'' case.<ref>{{cite web |url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4102356 |title=Fatale, Michael T., Justice Brandeis and State Taxation (April 25, 2022). State Tax Notes, Volume 104, May 2, 2022 |date=April 25, 2022 |ssrn=4102356 |access-date=May 18, 2022 |last1=Fatale |first1=Michael T. |archive-date=January 28, 2024 |archive-url=https://web.archive.org/web/20240128094700/https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4102356 |url-status=live }}</ref> That foundation, in turn, has had important application in the global taxation of income of multinationals. |
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The remains of both Justice Brandeis and his wife are interred beneath the portico of the Law School of the [[University of Louisville]], in Louisville, Kentucky.<ref>[http://web.archive.org/web/20050903032026/http://www.supremecourthistory.org/04_library/subs_volumes/04_c20_e.html Christensen, George A. (1983) ''Here Lies the Supreme Court: Gravesites of the Justices'', Yearbook] [[Supreme Court Historical Society]] at [[Internet Archive]].</ref><ref>[http://www.findagrave.com/cgi-bin/fg.cgi?page=gr&GRid=130 Louis D. Brandeis memorial at] [[Find a Grave]].</ref><ref>Christensen, George A., ''Here Lies the Supreme Court: Revisited'', ''Journal of Supreme Court History'', Volume 33 Issue 1, Pages 17 - 41 (Feb 19, 2008), [[University of Alabama]].</ref> Brandeis himself made the arrangements that made the law school one of only thirteen Supreme Court repositories in the U.S. His professional papers are archived at the library there. |
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The [[U.S. Postal Service]] in September 2009 honored Brandeis by featuring his image on a new set of commemorative stamps along with U.S. Supreme Court associate justices [[Joseph Story]], [[Felix Frankfurter]] and [[William J. Brennan Jr.]]<ref>{{cite web|url=http://www.wlky.com/news/21358579/detail.html |title=Brandeis' Stamp Of Approval Recognized |access-date=October 22, 2009 |url-status=bot: unknown |archive-url=https://web.archive.org/web/20120322045116/http://www.wlky.com/news/21358579/detail.html |archive-date=March 22, 2012 }}, WLKY.com, October 21, 2009</ref> In the Postal Service announcement about the stamp, he was credited with being "the associate justice most responsible for helping the Supreme Court shape the tools it needed to interpret the Constitution in light of the sociological and economic conditions of the 20th century." The Postal Service honored him with a stamp image in part because, their announcement states, he was "a progressive and champion of reform, [and] Brandeis devoted his life to social justice. He defended the right of every citizen to speak freely, and his groundbreaking conception of the right to privacy continues to impact legal thought today."<ref>{{cite web|url=http://www.usps.com/communications/newsroom/2008/pr08_136.htm |title=U.S. Postal Service Press Release |access-date=August 12, 2009 |url-status=dead |archive-url=https://web.archive.org/web/20110113200657/http://www.usps.com/communications/newsroom/2008/pr08_136.htm |archive-date=January 13, 2011 }}, new Brandeis commemorative stamp announced, December 2008</ref> |
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Brandeis lived to see many of the ideas that he had championed become the law of the land. Wages and hours legislation were now accepted as constitutional, and the right of labor to organize was protected by law. His spirited, eloquent defense of free speech and the right of privacy have had a continuing, powerful influence upon the Supreme Court and, ultimately, upon the life of the entire nation. The ''Economist'' magazine calls him "A [[Robin Hood]] of the law,"<ref>''The Economist'', Sept. 24, 2009 ("Books and Arts" section)</ref> and former Secretary of State [[Dean Acheson]], his early law clerk, was "impressed by a man whose personal code called for . . . the zealous molding of the lives of the underprivileged so that paupers might achieve moral growth."<ref>Harper, John Lamberton. ''American Visions of Europe'' Cambridge Univ. Press (1996)</ref>{{rp|246}} |
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Brandeis was a founding member of the [[Massachusetts Bar Association]].<ref>{{Cite book|title = Fiat Justitia: A History of the Massachusetts Bar Association. 1910–1985|last = Brink |first = Robert J.|publisher = Massachusetts Bar Association |year = 1987|isbn = 0-944394-00-0|location = Boston |pages = Forward}}</ref> |
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Wayne McIntosh writes of him, "In our national juristic temple, some figures have been accorded near-Olympian reverence. . . a part of that legal pantheon is Louis D. Brandeis – all the more so, perhaps because Brandeis was far more than a great justice. He was also a social reformer, legal innovator, labor champion, and Zionist leader. . . And it was as a judge that his concepts of privacy and free speech ultimately, if posthumously, resulted in virtual legal sea changes that continue to resonate even today.” Former Justice William O. Douglas wrote, “he helped America grow to greatness by the dedications of which he made his life." |
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Brandeis is a character in the play ''[[The Magnificent Yankee (play)|The Magnificent Yankee]]'', about Oliver Wendell Holmes. In the [[The Magnificent Yankee (1950 film)|1950 movie]] he is played by [[Eduard Franz]]. |
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The [[U.S. Postal Service]] in September, 2009 honored Brandeis by featuring his image on a new set of commemorative stamps along with U.S. Supreme Court associate justices [[Joseph Story]], [[Felix Frankfurter]] and [[William J. Brennan Jr.]]<ref>[http://www.wlky.com/news/21358579/detail.html "Brandeis' Stamp Of Approval Recognized"], WLKY.com, Oct. 21, 2009</ref> In the Postal Service announcement about the stamp, he was credited with being "the associate justice most responsible for helping the Supreme Court shape the tools it needed to interpret the Constitution in light of the sociological and economic conditions of the 20th century." The Postal Service honored him with a stamp image in part because, their announcement states, he was "a progressive and champion of reform, [and] Brandeis devoted his life to social justice. He defended the right of every citizen to speak freely, and his groundbreaking conception of the right to privacy continues to impact legal thought today."<ref>[http://www.usps.com/communications/newsroom/2008/pr08_136.htm U.S.Postal Service Press Release], new Brandeis commemorative stamp announced, Dec. 2008</ref> |
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== |
==Namesake institutions== |
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* [[Brandeis University]], in [[Waltham, Massachusetts]]. Several awards given at the school 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. |
* [[Brandeis University]], in [[Waltham, Massachusetts]]. Several awards given at the school 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. |
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[[File:Louis_Brandeis_statue_by_Robert_Berks.jpg|right|thumb|Statue of Brandeis on the campus of [[Brandeis University]]]] |
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* The [[University of Louisville]]'s [[Louis D. Brandeis School of Law]]. The school's principal [[law review]] publication was named the ''Brandeis Law Journal'' until it was renamed in 2007. The law school's Louis D. Brandeis Society awards the [[Brandeis Medal]]. |
* The [[University of Louisville]]'s [[Louis D. Brandeis School of Law]]. The school's principal [[law review]] publication was named the ''Brandeis Law Journal'' until it was renamed in 2007. The law school's Louis D. Brandeis Society awards the [[Brandeis Medal]]. |
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[[File:BrandeisLaw2.jpg|right|thumb|The [[University of Louisville School of Law|Louis D. Brandeis School of Law]] at the [[University of Louisville]] opened in 1846 and was named for Justice Brandeis in 1997.]] |
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* The ''Brandeis Law Journal'', one of the country’s few undergraduate law publications, launched in 2009. |
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* The ''Brandeis University Law Journal'', one of the country's few undergraduate law publications, launched in 2009.<ref>{{Cite web | url=https://www.brandeis.edu/legal-studies/undergraduate-opportunities/law-journal.html | title=Brandeis University Law Journal | website=brandeis.edu | access-date=July 7, 2021 | archive-date=November 15, 2021 | archive-url=https://web.archive.org/web/20211115193817/https://www.brandeis.edu/legal-studies/undergraduate-opportunities/law-journal.html | url-status=live }}</ref> |
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* [[Kibbutz]] [[Ein Hashofet]] (Hebrew: עין השופט) in [[Israel]], founded 1937. "Ein Hashofet" means "Spring of the Judge", a name chosen to honor Brandeis' Zionism. |
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* [[The Louis D. Brandeis Center for Human Rights under Law]], a civil rights organization established in [[Washington, D.C.]] to combat [[antisemitism]] in higher education. |
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* [[Kibbutz]] [[Ein Hashofet]] (Hebrew: {{lang|he|עין השופט}}) in [[Israel]], founded 1937. "Ein Hashofet" means "Spring of the Judge", a name chosen to honor Brandeis's Zionism. |
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* [[Kfar Brandeis]] (lit: Brandeis village) is a suburb of the Israeli city of [[Hadera]]. |
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* 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. |
* 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. |
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* The Brandeis School, a private Jewish day-school in [[Lawrence, Nassau County, New York|Lawrence, New York]]. |
* The Brandeis School, a private Jewish day-school in [[Lawrence, Nassau County, New York|Lawrence, New York]]. |
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* Brandeis |
* [[The Brandeis School of San Francisco]], a K–8 independent coeducational Jewish day school in [[San Francisco, California]] (formerly one of two campuses of Brandeis Hillel Day School). |
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* Brandeis Marin, an independent Jewish school in [[San Rafael, California]] (formerly one of two campuses of Brandeis Hillel Day School). |
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* The [[Brandeis-Bardin Institute]], in [[Simi Valley]], near [[Los Angeles]], a Jewish educational outreach resource. |
* The [[Brandeis-Bardin Institute]], in [[Simi Valley]], near [[Los Angeles]], a Jewish educational outreach resource. |
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* The [[New York City Public Schools]] Louis D. Brandeis High School, named for the justice and dissolved in |
* The [[New York City Public Schools]]' Louis D. Brandeis High School, named for the justice and dissolved in 2012, though the building, which houses several smaller educational units, is now called the Brandeis High School Campus.<ref>{{Cite web |url=https://insideschools.org/school/03M470 |title=Louis D. Brandeis High School in New York City |website=insideschools.org |access-date=July 7, 2021 |archive-date=July 9, 2021 |archive-url=https://web.archive.org/web/20210709190359/https://insideschools.org/school/03M470 |url-status=live }}</ref> |
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* [[Louis D. Brandeis High School]], in [[San Antonio, Texas]], where the [[Northside Independent School District]] names all of its comprehensive high schools for Supreme Court Justices |
* [[Louis D. Brandeis High School]], in [[San Antonio, Texas]], where the [[Northside Independent School District]] names all of its comprehensive high schools for Supreme Court Justices |
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* [http://www.brandeislawsociety.org Louis D. Brandeis Law Society], in [[Philadelphia]], a "Jewish law society ... dedicated to advancing and enriching the personal and professional interests of [its] members of the Bench and Bar." |
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* Brandeis Elementary School in his hometown of [[Louisville, Kentucky|Louisville, KY]]. |
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* Louis D. Brandeis AZA #932, a B'nai |
* Louis D. Brandeis AZA #932, a B'nai B'rith Youth Organization Chapter in [[Dallas]]. |
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* Brandeis AZA #1519, a B'nai |
* Brandeis AZA #1519, a B'nai B'rith Youth Organization Chapter in [[Rockville, Maryland]]. |
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* Brandeis AZA #1999, a B'nai |
* Brandeis AZA #1999, a B'nai B'rith Youth Organization Chapter in [[Minneapolis, Minnesota]] |
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* Hadassah-Brandeis Apprentice School of Printing in [[Jerusalem, Israel]] |
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* Brandeis Dining Center, at [[Creighton University]] in [[Omaha, Nebraska]] |
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== |
==Selected opinions== |
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{{Wikisource|Author: Louis Brandeis}} |
{{Wikisource|Author: Louis Brandeis}} |
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* [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=297&invol=288 ''Ashwander v. Tennessee Valley Authority'' (1936) (concurring)] |
* [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=297&invol=288 ''Ashwander v. Tennessee Valley Authority'' (1936) (concurring)] |
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* [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=304&invol=64 ''Erie Railroad Co. v. Tompkins'' (1938) (majority)] |
* [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=304&invol=64 ''Erie Railroad Co. v. Tompkins'' (1938) (majority)] |
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* |
* {{webarchive |url=https://web.archive.org/web/20100423174154/http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Gilbert_v_MN |date=April 23, 2010 |title=''Gilbert v. Minnesota'' (1920) (dissenting)}} |
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* [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=285&invol=262 ''New State Ice Co. v. Liebmann'' (1932) (dissenting)] |
* [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=285&invol=262 ''New State Ice Co. v. Liebmann'' (1932) (dissenting)] |
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* [ |
* [https://supreme.justia.com/cases/federal/us/277/438/ ''Olmstead v. United States'' (1928) (dissenting)] |
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* |
* {{webarchive |url=https://web.archive.org/web/20090210114811/http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Ruthenberg_v_Michigan |date=February 10, 2009 |title=''Ruthenberg v. Michigan'' (1927) (unpublished dissent) }} |
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* [ |
* [https://swap.stanford.edu/20080725132654/http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Milwaukee_Democratic_Publishing_v_Burleson ''Sugarman v. United States'' (1919) (majority)] |
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* |
* {{webarchive |url=https://swap.stanford.edu/20080725132654/http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Milwaukee_Democratic_Publishing_v_Burleson |date=July 25, 2008 |title=''United States ex rel Milwaukee Social Democratic Publishing Co. v. Burleson'' (1921) (dissenting) }} |
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* |
* {{webarchive |url=https://swap.stanford.edu/20080725082422/http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Whitney_v_CA |date=July 25, 2008 |title=''Whitney v. California'' (1927) (concurring) }} |
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* [ |
* [https://web.archive.org/web/20090301043642/http://lawrence.edu/fast/boardmaw/Privacy_brand_warr2.html The Collected Supreme Court Opinions of Louis D. Brandeis] |
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* [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=260&page=393 ''Pennsylvania Coal Co. v. Mahon'' (1922) (dissenting)] |
* [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=260&page=393 ''Pennsylvania Coal Co. v. Mahon'' (1922) (dissenting)] |
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* [ |
* [https://web.archive.org/web/20090301043642/http://lawrence.edu/fast/boardmaw/Privacy_brand_warr2.html ''Loughran v. Loughran'' (1934) (majority)] |
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== See also == |
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{{multicol}} |
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* [[Demographics of the Supreme Court of the United States]] |
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* [[List of Justices of the Supreme Court of the United States]] |
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* [[List of law clerks of the Supreme Court of the United States]] |
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* [[List of Louisvillians]] |
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* [[List of U.S. Supreme Court Justices by time in office]] |
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{{multicol-break}} |
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==See also== |
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{{colbegin}} |
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* [[Louis Brandeis House]] |
* [[Louis Brandeis House]] |
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* [[List of justices of the Supreme Court of the United States]] |
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* [[List of United States Supreme Court justices by time in office]] |
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* [[List of United States Supreme Court cases by the Hughes Court|United States Supreme Court cases during the Hughes Court]] |
* [[List of United States Supreme Court cases by the Hughes Court|United States Supreme Court cases during the Hughes Court]] |
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* [[List of United States Supreme Court cases by the Taft Court|United States Supreme Court cases during the Taft Court]] |
* [[List of United States Supreme Court cases by the Taft Court|United States Supreme Court cases during the Taft Court]] |
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* [[List of United States Supreme Court cases by the White Court|United States Supreme Court cases during the White Court]] |
* [[List of United States Supreme Court cases by the White Court|United States Supreme Court cases during the White Court]] |
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*[[List of people on the cover of Time Magazine: 1920s]] |
* [[List of people on the cover of Time Magazine: 1920s]] |
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{{ |
{{colend}} |
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== |
==Notes== |
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{{Reflist|colwidth=30em |
{{Reflist|colwidth=30em|refs= |
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<ref name=hair>{{cite book |
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== References == |
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= |
|author=Louis D. Brandeis |
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|title=Letters of Louis D. Brandeis: Volume III, 1913–1915: Progressive and Zionist |
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|url=https://books.google.com/books?id=Q7bviBd4w18C&pg=PA79 |
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|date=June 30, 1973 |
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|publisher=SUNY Press |
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|isbn=978-1-4384-2259-6 |
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|pages=79–80 |
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|access-date=February 19, 2016 |
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|archive-date=August 20, 2016 |
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|archive-url=https://web.archive.org/web/20160820011053/https://books.google.com/books?id=Q7bviBd4w18C&pg=PA79 |
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|url-status=live |
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}}</ref> |
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<!-- <ref name=muzzle>{{cite news |
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* ''The Brandeis Guide to the Modern World'', Alfred Lief, editor (Boston: [[Little, Brown & Co.]], 1941) |
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| newspaper = The Dedham Transcript |
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* ''Brandeis on Zionism'', Solomon Goldman, editor (Washington, D.C.: Zionist Organization of America, 1942) |
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| date = January 11, 1908 |
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* ''Business, a Profession'', Ernest Poole, editor (Boston, MA: Small, Maynard, 1914) |
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| location = [[Dedham, Massachusetts]] |
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* ''The Curse of Bigness'', Osmond K. Fraenkel, editor (New York, NY: [[Viking Press]], 1934) |
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| author = Staff writer(s) |
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* ''The Words of Justice Brandeis'', Solomon Goldman, editor (New York, N.Y.: Henry Schuman, 1953) |
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}}</ref> --> |
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* ''[[Other People's Money and How the Bankers Use It]]'' (New York, NY: Stokes, 1914) |
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* 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) |
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* Melvin I. Urofsky, editor, ''Letters of Louis D. Brandeis'' (State [[University of New York Press]], 1980) |
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* Melvin I. Urofsky & David W. Levy, editors, ''Letters of Louis D. Brandeis'' ([[State University of New York Press]], 1971–1978, 5 vols.) |
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* Melvin I. Urofsky & David W. Levy, editors, ''The Family Letters of Louis D. Brandeis'' ([[University of Oklahoma Press]], 2002) |
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* Louis Brandeis & [[Samuel D. Warren (US attorney)|Samuel Warren]] [http://www.lawrence.edu/fast/boardmaw/Privacy_brand_warr2.html "The Right to Privacy," 4 [[Harvard Law Review]] 193-220 (1890–91)] |
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* "The Living Law," 10 [[Illinois Law Review]] 461 (1916) |
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* "The Opportunity in the Law," 39 [[American Law Review]] 555 (1905) |
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}} |
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=== Books about Brandeis === |
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{{Refbegin|2}} |
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==References== |
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* Jack Grennan, ''Brandeis & Frankfurter: A Dual Biography'' (New York, N.Y.: [[Harper & Row]], 1984) |
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* Gerald Berk, ''Louis Brandeis and the Making of Regulated Competition, 1900-1932'' ([[Cambridge University Press]], 2009) |
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* Alexander M. Bickel, ''The Unpublished Opinions of Mr. Justice Brandeis'' (Cambridge, MA: [[Harvard University Press]], 1957) |
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* Robert A. Burt, ''Two Jewish Justices: Outcasts in the Promised Land'' (Berkeley, CA: University of California Press, 1988) |
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* Nelson L. Dawson, editor, ''Brandeis and America'' (Lexington, KY: [[University Press of Kentucky]], 1989) |
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* Jacob DeHaas, ''Louis D. Brandeis, A Biographical Sketch'' (Blach, 1929) |
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* Felix Frankfurter, editor, ''Mr. Justice Brandeis'' (New Haven, CT: [[Yale University Press]], 1932) |
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* Ben Halpern, ''A Clash of Heroes: Brandeis, Weizman, and American Zionism'' (New York, N. Y.: Oxford University Press, 1986) |
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* Samuel J. Konefsky, ''The Legacy of Holmes & Brandeis: A Study in the Influence of Ideas'' (New York, N.Y.: [[Macmillan Co.]], 1956) |
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* Alfred Lief, ''Brandeis: The Personal History of an American Ideal'' (New York, N.Y.: Stackpole Sons, 1936) |
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* Alfred Lief, editor, ''The Social & Economic Views of Mr. Justice Brandeis'' (New York, N.Y.: The Vanguard Press, 1930) |
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* Jacob Rader Marcus, ''Louis Brandeis'' (Twayne Publishing, 1997) |
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* Alpheus Thomas Mason, ''Brandeis: A Free Man's Life'' (New York, N.Y.: The [[Viking Press]], 1946) |
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* Alpheus Thomas Mason, ''Brandeis & The Modern State'' (Princeton, N.J.: [[Princeton University Press]], 1933) |
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* Thomas McCraw, ''Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn'' (Cambridge, MA: Harvard University Press, 1984) |
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* Ray M. Mersky, ''Louis Dembitz Brandeis 1856-1941: Bibliography'' (Fred B Rothman & Co; reprint ed., 1958) |
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* Bruce Allen Murphy, ''The Brandeis/Frankfurter Connection: The Secret Activities of Two Supreme Court Justices'' (New York, N.Y.: Oxford University Press, 1982) |
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* Lewis J. Paper, Brandeis: ''An Intimate Biography of one of America's Truly Great Supreme Court Justices'' (Englewood Cliffs, N.J.: [[Prentice-Hall]], Inc., 1983) |
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* Catherine Owens Peare, ''The Louis D. Brandeis Story'' (Ty Crowell Co., 1970) |
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* Edward A. Purcell, Jr., ''Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America'' (New Haven, CN: [[Yale University Press]] 2000) |
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* Philippa Strum, ''Brandeis: Beyond Progressivism'' (Lawrence, KS: University Press of Kansas, 1993) |
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* Philippa Strum, editor, ''Brandeis on Democracy'' (Lawrence, KS: [[University Press of Kansas]], 1995) |
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* Philippa Strum, ''Louis D. Brandeis: Justice for the People'' (Cambridge, Mass.: Harvard University Press, 1988) |
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* A.L. Todd, ''Justice on Trial: The Case of Louis D. Brandeis'' (New York, N.Y: McGraw-Hill, 1964) |
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* Melvin I. Urofsky, ''A Mind of One Piece: Brandeis and American Reform'' (New York, N.Y., [[Charles Scribner's Sons|Scribner]], 1971) |
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* Melvin I. Urofsky, ''Louis D. Brandeis, American Zionist'' (Jewish Historical Society of Greater Washington, 1992) (monograph) |
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* Melvin I. Urofsky, ''Louis D. Brandeis & the Progressive Tradition'' (Boston, MA: Little, Brown & Co., 1981) |
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* Melvin I. Urofsky, ''[http://www.nytimes.com/2009/02/07/opinion/07urofsky.html?em Louis D. Brandeis: A Life]'' (Pantheon, 2009) |
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* Nancy Woloch, ''Muller v. Oregon: A Brief History with Documents'' (Boston, MA: Bedford Books, 1996) |
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===Selected works by Brandeis=== |
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* [https://archive.org/details/TheLivingLawLouisBrandeis ''The Living Law''], ''[[Illinois Law Review]]'', February 16, 1916 |
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* ''The Brandeis Guide to the Modern World''. Alfred Lief, Ed. (Boston: Little, Brown & Co., 1941) |
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* ''Brandeis on Zionism''. Solomon Goldman, Ed. (Washington, D.C.: Zionist Organization of America, 1942) |
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* ''Business, a Profession''. Ernest Poole, Foreword (Boston: Small, Maynard & Co. Pubs., 1914) |
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* ''The Curse of Bigness. Miscellaneous Papers of Louis Brandeis''. Osmond K. Fraenkel, Ed. (New York: The Viking Press, 1934) |
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* ''The Words of Justice Brandeis''. Solomon Goldman, Ed. (New York: Henry Schuman, 1953) |
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* ''[[Other People's Money and How the Bankers Use It]]'' (New York: Stokes, 1914) |
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* Melvin I. Urofsky, David W. Levy, Eds. ''Half Brother, Half Son: The Letters of Louis D. Brandeis to Felix Frankfurter'' (Norman: University of Oklahoma Press, 1991) |
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* Melvin I. Urofsky, Ed. ''Letters of Louis D. Brandeis'' (Albany: State University of New York Press, 1980) |
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* Melvin I. Urofsky, David W. Levy, Eds. ''Letters of Louis D. Brandeis'' (Albany: State University of New York Press, 1971–1978, 5 vols.) |
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* Melvin I. Urofsky, David W. Levy, Eds. ''The Family Letters of Louis D. Brandeis'' (Norman: University of Oklahoma Press, 2002) |
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* Louis Brandeis, Samuel Warren {{webarchive |url=https://web.archive.org/web/20090301043642/http://lawrence.edu/fast/boardmaw/Privacy_brand_warr2.html |date=March 1, 2009 |title="The Right to Privacy," }} 4 [[Harvard Law Review]] 193–220 (1890–91) |
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* [[Alexander M. Bickel]]. ''The Unpublished Opinions of Mr. Justice Brandeis'' (Cambridge: Harvard University Press, 1957) |
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* Philippa Strum, ed. ''Brandeis on Democracy'' (Lawrence: University Press of Kansas, 1995) |
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===Books about Brandeis=== |
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{{Refbegin|2}} |
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* [[Leonard Baker]]. ''Brandeis and Frankfurter: A Dual Biography'' (New York: Harper & Row, 1984) [https://archive.org/details/brandeisfrankfur00bake online] |
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* Gerald Berk. ''Louis Brandeis and the Making of Regulated Competition, 1900–1932'' (Cambridge: Cambridge University Press, 2009) |
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* Robert A. Burt. ''Two Jewish Justices: Outcasts in the Promised Land'' (Berkeley: University of California Press, 1988) |
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* Nelson L. Dawson, ed. ''Brandeis and America'' (Lexington: University Press of Kentucky, 1989) |
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* Jacob DeHaas. ''Louis D. Brandeis: A Biographical Sketch'' (New York: Bloch Publishing, 1929) |
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* Felix Frankfurter, ed. ''Mr. Justice Brandeis'' (New Haven: Yale University Press, 1932) |
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* Ben Halpern. ''A Clash of Heroes: Brandeis, Weizman, and American Zionism'' (New York: Oxford University Press, 1986) |
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* Samuel J. Konefsky. ''The Legacy of Holmes and Brandeis: A Study in the Influence of Ideas'' (New York: Macmillan & Co., 1956) |
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* Alfred Lief, ed. ''The Social and Economic Views of Mr. Justice Brandeis'' (New York: The Vanguard Press, 1930) |
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* Jacob Rader Marcus. ''Louis Brandeis'' (Twayne Publishing, 1997) |
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* Alpheus Thomas Mason. ''Brandeis: A Free Man's Life'' (New York: The Viking Press, 1946) [https://archive.org/details/in.ernet.dli.2015.184857 online] |
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* Alpheus Thomas Mason. ''Brandeis and The Modern State'' (Princeton: Princeton University Press, 1936) [https://archive.org/details/brandeislawyerju00maso online] |
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* Thomas McCraw. ''Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn'' (Cambridge: Harvard University Press, 1984) |
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* Ray M. Mersky. ''Louis Dembitz Brandeis 1856–1941: Bibliography'' (Fred B Rothman & Co; reprint ed., 1958) |
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* [[Bruce Allen Murphy]], ''The Brandeis/Frankfurter Connection: The Secret Activities of Two Supreme Court Justices'' (New York: Oxford University Press, 1982) |
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* Lewis J. Paper. ''Brandeis: An Intimate Biography of One of America's Truly Great Supreme Court Justices'' (Englewood Cliffs: Prentice-Hall, 1983) |
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* Edward A. Purcell Jr. ''Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America'' (New Haven: Yale University Press, 2000) |
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* [[Jeffrey Rosen (legal academic)|Jeffrey Rosen]]. ''Louis D. Brandeis: American Prophet'' (New Haven: Yale University Press, 2016) |
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* Philippa Strum. ''Brandeis: Beyond Progressivism'' (Lawrence: University Press of Kansas, 1993) |
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* Philippa Strum. ''Louis D. Brandeis: Justice for the People'' (Cambridge: Harvard University Press, 1988) [https://archive.org/details/louisdbrandeisju00stru online] |
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* A.L. Todd. ''Justice on Trial: The Case of Louis D. Brandeis'' (New York: McGraw-Hill, 1964) |
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* [[Melvin I. Urofsky]]. ''A Mind of One Piece: Brandeis and American Reform'' (New York, [[Charles Scribner's Sons|Scribner]], 1971) |
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* Melvin I. Urofsky. ''Louis D. Brandeis, American Zionist'' (Jewish Historical Society of Greater Washington, 1992) (monograph) |
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* Melvin I. Urofsky. ''Louis D. Brandeis and the Progressive Tradition'' (Boston: Little, Brown & Co., 1981) [https://archive.org/details/louisdbrandeispr0000urof online] |
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* Melvin I. Urofsky. ''Louis D. Brandeis: A Life'' (New York: Pantheon, 2009) [https://www.nytimes.com/2009/02/07/opinion/07urofsky.html?em review] {{Webarchive|url=https://web.archive.org/web/20180816115712/https://www.nytimes.com/2009/02/07/opinion/07urofsky.html?em |date=August 16, 2018 }} |
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* Nancy Woloch. ''Muller v. Oregon: A Brief History with Documents'' (Boston: Bedford Books, 1996) |
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{{Refend|2}} |
{{Refend|2}} |
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=== |
===Select articles=== |
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{{Refbegin|2}} |
{{Refbegin|2}} |
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* {{cite book|title=Constitutional Law Stories |chapter=The Story of ''Whitney v. California'': The Power of Ideas |last=Bhagwat |first=Ashutosh A. |editor=Dorf, Michael C. |year=2004|publisher=Foundation Press |location=New York |isbn=1-58778-505-6|pages=418–520}} |
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* {{cite journal|last=Bernstein |first=David |year=2014|ssrn=2447775|title=From Progressivism to Modern Liberalism: Louis D. Brandeis as a Transitional Figure in Constitutional Law |journal=Notre Dame |volume=89|page=2029}} |
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* {{Cite book |title=Constitutional Law Stories |chapter=The Story of ''Whitney v. California'': The Power of Ideas |last=Bhagwat |first=Ashutosh A. |authorlink= |editor=Dorf, Michael C. (ed.) |year=2004 |publisher=Foundation Press |location=New York |isbn=1587785056 |pages=418–520 }} |
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* {{ |
* {{cite journal|last=Blasi |first=Vincent |year=1988|title=The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in ''Whitney v. California'' |journal=William & Mary Law Review |volume=29|page=653}} |
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* {{ |
* {{cite journal|last=Bobertz |first=Bradley C.|year=1999|title=The Brandeis Gambit: The Making of America's 'First Freedom,' 1909–1931|journal=William & Mary Law Review |volume=40|page=557}} |
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* {{ |
* {{cite journal|last=Brandes |first=Evan B.|year=2005|title=Legal Theory and Property Jurisprudence of Oliver Wendell Holmes, Jr. and Louis D. Brandeis: An Analysis of ''Pennsylvania Coal Company v. Mahon'' |journal=Creighton Law Review |volume=38|page=1179}} |
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* {{ |
* {{cite journal|last=Collins |first=Ronald K.L.|author-link=Ronald K.L. Collins|author2=Skover, David |year=2005|title=Curious Concurrence: Justice Brandeis's Vote in ''Whitney v. California'' |journal=Supreme Court Review |volume=2005|pages=1–52|doi=10.1086/655189|s2cid=142801765}} |
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* {{ |
* {{cite journal|last=Collins |first=Ronald|author2=Friesen, Jennifer |year=1983|title=Looking Back on ''Muller v. Oregon'' |journal=American Bar Association Journal |volume=69|pages=294–298, 472–477}} |
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* Coyle, Erin, Elisabeth Fondren, and Joby Richard. "Advocacy, Editorial Opinion, and Agenda Building: How Publicity Friends Fought for Louis D. Brandeis’s 1916 Supreme Court Confirmation." ''American Journalism'' 37.2 (2020): 165–190. |
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* {{Cite journal |last=Erickson |first=Nancy |authorlink= |coauthors= |year=1989 |month= |title=''Muller v. Oregon'' Reconsidered: The Origins of a Sex-Based Doctrine of Liberty of Contract |journal=Labor History |volume=30 |issue= |pages=228–250 |id= |url= |accessdate= |quote= |doi=10.1080/00236568900890161 }} |
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* {{ |
* {{cite journal|last=Erickson |first=Nancy |year=1989|title=''Muller v. Oregon'' Reconsidered: The Origins of a Sex-Based Doctrine of Liberty of Contract |journal=Labor History |volume=30|issue=2|pages=228–250|doi=10.1080/00236568900890161}} |
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* {{ |
* {{cite journal|last=Farber |first=Daniel A.|author-link=Daniel Farber |year=1995|title=Reinventing Brandeis: Legal Pragmatism For the 21st Century |journal=U. Ill. L. Rev.|volume=1995|page=163}} |
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* {{ |
* {{cite journal|last=Frankfurter |first=Felix |author-link=Felix Frankfurter |year=1916|title=Hours of Labor and Realism in Constitutional Law |journal=[[Harvard Law Review]]|volume=29|issue=4|pages=353–373|doi=10.2307/1326686|jstor=1326686}} |
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* {{ |
* {{cite journal|last=Freund |first=Paul A.|author-link=Paul A. Freund |year=1957|title=Mr. Justice Brandeis: A Centennial Memoir |journal=Harvard Law Review |volume=70|page=769}} |
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* {{cite journal|last=Spillenger |first=Clyde |year=1996|title=Elusive Advocate: Reconsidering Brandeis as People's Lawyer |journal=Yale Law Journal|volume=105|issue=6|doi=10.2307/797295|jstor=797295|pages=1445–1535|url=https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=7681&context=ylj|access-date=September 5, 2019|archive-date=April 27, 2019|archive-url=https://web.archive.org/web/20190427085033/https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=7681&context=ylj|url-status=live}} |
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* {{Cite journal |last=Spillenger |first=Clyde |authorlink= |coauthors= |year=1992 |month= |title=Reading the Judicial Canon: Alexander Bickel and the Book of Brandeis |journal=Journal of American History |volume=79 |issue=1 |pages=125–151 |doi=10.2307/2078470 |url= http://jstor.org/stable/2078470|accessdate= |quote= }} |
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* {{ |
* {{cite journal|last=Spillenger |first=Clyde |year=1992|title=Reading the Judicial Canon: Alexander Bickel and the Book of Brandeis |journal=[[Journal of American History]]|volume=79|issue=1|pages=125–151|doi=10.2307/2078470|jstor=2078470}} |
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* {{ |
* {{cite journal|last=Urofsky |first=Melvin I.|year=2005|title=Louis D. Brandeis: Advocate Before and On the Bench |journal=Journal of Supreme Court History |volume=30|page=31|doi=10.1111/j.1059-4329.2005.00096.x| s2cid=145579255 }} |
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* {{ |
* {{cite journal|last=Urofsky |first=Melvin I.|year=1985|title=State Courts and Protective Legislation during the Progressive Era: A Reevaluation |journal=Journal of American History |volume=72|issue=1|pages=63–91|doi=10.2307/1903737|jstor=1903737}} |
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* Urofsky, Melvin I. "Wilson, Brandeis, and the Supreme Court Nomination." ''Journal of Supreme Court History'' 28.2 (2003): 145–156. |
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* {{cite journal|last=Vose |first=Clement E.|year=1957|title=The National Consumers' League and the Brandeis Brief |journal=Midwest Journal of Political Science |volume=1|issue=3/4|pages=267–290|doi=10.2307/2109304|jstor=2109304}} |
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{{Refend}} |
{{Refend}} |
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=== |
===Shorter mention=== |
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{{Refbegin|2}} |
{{Refbegin|2}} |
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* Goldstein, Joel K. [https://web.archive.org/web/20100419051933/http://loumag.epubxpress.com/wps/portal/lou/c1/04_SB8K8xLLM9MSSzPy8xBz9CP0os3iLkCAPEzcPIwMDQ0dHA6OQUK8QR0NPI3cPI_2CbEdFAF1ZzwQ%21 "The art of judicial selection: Lessons for Obama from Brandeis and Freund"], ''The St. Louis Beacon'', May 19, 2009 |
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* Dash, Eric [https://www.nytimes.com/2009/06/21/weekinreview/21dash.html?_r=1&th&emc=th "If It's Too Big to Fail, Is It Too Big to Exist?"] {{Webarchive|url=https://web.archive.org/web/20180815063519/https://www.nytimes.com/2009/06/21/weekinreview/21dash.html?_r=1&th&emc=th |date=August 15, 2018 }}, ''The New York Times'', June 20, 2009 |
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*Goldstein, Joel K. [http://www.stlbeacon.org/voices/in-the-news/8872 "The art of judicial selection: Lessons for Obama from Brandeis and Freund"], ''The St. Louis Beacon'', May 19, 2009 |
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* Mirsky, Yehudah "[https://web.archive.org/web/20100419051933/http://loumag.epubxpress.com/wps/portal/lou/c1/04_SB8K8xLLM9MSSzPy8xBz9CP0os3iLkCAPEzcPIwMDQ0dHA6OQUK8QR0NPI3cPI_2CbEdFAF1ZzwQ! "Zionism, Ethics and the New Birth of Freedom: Louis Brandeis, Then and Now"], ''Jewcy/Zeek'', August 18, 2009 |
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* Nold Jr., James, ''Louisville Magazine'', March 2010. |
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*Dash, Eric [http://www.nytimes.com/2009/06/21/weekinreview/21dash.html?_r=1&th&emc=th "If It's Too Big to Fail, Is It Too Big to Exist?"], ''The New York Times'', June 20, 2009 |
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* Schwarz, Jordan A. ''The New Dealers: Power politics in the age of Roosevelt'' (Vintage, 2011) pp 109–122. [https://archive.org/details/newdealerspowerp0000schw online] |
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*Mirsky, Yehudah "[http://www.jewcy.com/post/zionism_ethics_and_new_birth_freedom Zionism, Ethics and the New Birth of Freedom: Louis Brandeis, Then and Now], "Jewcy/Zeek", August 18, 2009 |
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*Nold, Jr., James [http://loumag.epubxpress.com/wps/portal/lou/c1/04_SB8K8xLLM9MSSzPy8xBz9CP0os3iLkCAPEzcPIwMDQ0dHA6OQUK8QR0NPI3cPI_2CbEdFAF1ZzwQ! "Louis D. Brandeis Remembered: Justice For All"], Louisville Magazine, March, 2010. |
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{{Refend}} |
{{Refend}} |
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== |
==Further reading== |
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{{Refbegin |
{{Refbegin}} |
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* {{cite book|last=Abraham |first=Henry J.|title=Justices and Presidents: A Political History of Appointments to the Supreme Court|url=https://archive.org/details/justicespresiden0000abra|url-access=registration|edition=3rd|publisher=Oxford University Press|year=1992|location=New York |isbn=0-19-506557-3}} |
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* {{ |
* {{cite book |first=Haig |last=Bosmajian |title=Anita Whitney, Louis Brandeis, and the First Amendment |location=Cranbury, NJ |publisher=Farleigh Dickinson University Press |year=2010 |isbn=9780838642672 }} |
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* {{ |
* {{cite book|last=Cushman |first=Clare |title=The Supreme Court Justices: Illustrated Biographies, 1789–1995|edition=2nd|publisher=(Supreme Court Historical Society, Congressional Quarterly Books)|year=2001|isbn=1-56802-126-7}} |
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* {{ |
* {{cite book|last=Frank |first=John P. |editor-last=Friedman |editor-first=Leon|editor2-last=Israel|editor2-first=Fred L.|title=The Justices of the United States Supreme Court: Their Lives and Major Opinions |publisher=Chelsea House Publishers|year=1995|isbn=0-7910-1377-4|url=https://archive.org/details/justicesofunited0000unse}} |
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* {{ |
* {{cite book |editor-last=Hall |editor-first=Kermit L.|editor-link=Kermit L. Hall |title=The Oxford Companion to the Supreme Court of the United States |publisher=Oxford University Press|year=1992|location=New York|isbn=0-19-505835-6|url=https://archive.org/details/oxfordcompaniont00hall}} |
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* {{Cite CAB|wstitle= Brandeis, Louis Dembitz |last= Homans |first= James E. |author-link= |page= |short=}} |
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* {{Cite book |last=Martin |first=Fenton S. |coauthor=Goehlert, Robert U. |title=The U.S. Supreme Court: A Bibliography |publisher=Congressional Quarterly Books |year=1990 |location=Washington, D.C. |isbn=0871875543 }} |
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* {{ |
* {{cite book|last=Martin |first=Fenton S.|author2=Goehlert, Robert U.|title=The U.S. Supreme Court: A Bibliography |publisher=Congressional Quarterly Books |year=1990|location=Washington, D.C.|isbn=0-87187-554-3|url=https://archive.org/details/ussupremecourtbi0000mart}} |
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* {{cite book|last=Urofsky |first=Melvin I.|title=The Supreme Court Justices: A Biographical Dictionary |publisher=Garland Publishing |year=1994|location=New York|page=590|isbn=0-8153-1176-1|url=https://archive.org/details/supremecourtjust00melv|url-access=registration}} |
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| year=1994 |location=New York |page=590 |isbn=0815311761 }} |
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* {{Cite book |last=Urofsky |first=Melvin I. |title=Louis D. Brandeis: A Life |publisher=Pantheon |
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| year=2009 |location=New York |page=976 |isbn=0375423664 }} |
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{{Refend}} |
{{Refend}} |
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== |
==External links== |
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{{sister project links|d=Q520840|q=Louis Brandeis |c=Category:Louis Brandeis |s=Author:Louis Dembitz Brandeis |wikt=no|v=no|b=no|species=no|n=no}} |
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{{Wikiquote}} |
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* [https://www.brandeis.edu/now/2009/october/urofsky.html Melvin I. Urofsky discusses 'Louis D. Brandeis: A Life'] Video, 40 minutes, September 29, 2009 |
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{{Commons category}} |
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* [https://www.c-span.org/video/?289447-1/qa-melvin-urofsky C-SPAN ''Q&A'' interview with Melvin Urofsky about ''Louis D. Brandeis: A Life'', November 8, 2009] |
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{{wikisource-author|Louis Dembitz Brandeis}} |
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* [https://www.npr.org/2016/06/07/481076322/revisiting-the-tenure-of-supreme-court-justice-louis-brandeis-the-jewish-jeffers Revisiting the Tenure of Supreme Court Justice Louis Brandeis, the 'Jewish Jefferson' (NPR's "Fresh Air" 2016)] |
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*[http://www.brandeis.edu/now/2009/october/urofsky.html Melvin I. Urofsky discusses 'Louis D. Brandeis: A Life'] Video, 40 minutes, Sept. 29, 2009 |
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* [ |
* [https://www.thirteen.org/wnet/supremecourt/capitalism/robes_brandeis.html Fox, John, ''Capitalism and Conflict, Biographies of the Robes, Louis Dembitz Brandeis.''] [[Public Broadcasting Service]]. |
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* {{FJC Bio|241}} |
* {{FJC Bio|241|nid=1378171|name=Louis Dembitz Brandeis<!--(1856–1941)-->}} |
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* [ |
* [https://archive.org/details/cu31924018175715 Nomination of Louis D. Brandeis]: hearings before the subcommittee of the committee on the Judiciary of the Senate February 9, 1916 ..., Volumes 1–21, 1219 pages at book dot Google. |
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* Harvard University Library Open Collections Program. Women Working, 1870–1930, |
* Harvard University Library Open Collections Program. Women Working, 1870–1930, {{webarchive |url=https://web.archive.org/web/20080505031616/http://ocp.hul.harvard.edu/ww/people_brandeis.html |date=May 5, 2008 |title=Louis Brandeis (1846–1941). }} A full-text searchable online database with complete access to publications written by Louis Brandeis. |
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* [ |
* [https://louisville.edu/law/library/special-collections/the-louis-d.-brandeis-collection/the-louis-d.-brandeis-collection University of Louisville, Louis D. Brandeis School of Law Library – Louis D. Brandeis Collection] |
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* [https://web.archive.org/web/20120304065937/http://archon.brandeis.edu/?p=collections%2Ffindingaid&id=44 Louis Dembitz Brandeis Collection at Brandeis University] |
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* {{Gutenberg author | id=38801}} |
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* {{Internet Archive author |sname=Louis Dembitz Brandeis}} |
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* {{Librivox author |id=1062}} |
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* {{Find a Grave |id= 130}} |
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{{Succession box|title=[[List of Justices of the Supreme Court of the United States|Associate Justice of the Supreme Court of the United States]]|before=[[Joseph Rucker Lamar]]|after=[[William O. Douglas]]|years=June 1, 1916–February 13, 1939}} |
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{{U.S. Supreme Court composition 1916–1921}} |
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{{U.S. Supreme Court composition CJ| CJ=[[Charles Evans Hughes|Hughes]]}} |
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{{U.S. Supreme Court composition court lifespan| cj=Charles Evans Hughes| years=1930–1941}} |
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{{U.S. Supreme Court composition 1930}} |
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{{end U.S. Supreme Court composition}} |
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{{Persondata |
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| NAME=Brandeis, Louis Dembitz |
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| ALTERNATIVE NAMES= |
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| SHORT DESCRIPTION=[[United States|American]] [[Supreme Court Justice]] |
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| DATE OF BIRTH=November 13, 1856 |
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| PLACE OF BIRTH=[[Louisville, Kentucky|Louisville]], [[Kentucky]] |
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| DATE OF DEATH=October 5, 1941 |
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| PLACE OF DEATH=[[Washington, D.C.]] |
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}} |
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{{DEFAULTSORT:Brandeis, Louis}} |
{{DEFAULTSORT:Brandeis, Louis}} |
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Revision as of 00:00, 22 June 2024
Louis Brandeis | |
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![]() | |
Associate Justice of the Supreme Court of the United States | |
In office June 5, 1916 – February 13, 1939[1] | |
Nominated by | Woodrow Wilson |
Preceded by | Joseph Lamar |
Succeeded by | William O. Douglas |
Personal details | |
Born | Louis David Brandeis November 13, 1856 Louisville, Kentucky, U.S. |
Died | October 5, 1941 Washington, D.C., U.S. | (aged 84)
Political party | Republican (before 1912) Democratic (after 1912)[2] |
Spouse |
Alice Goldmark (m. 1891) |
Children | 2 |
Education | Harvard University (LLB) |
This article is part of a series on |
Liberalism in the United States |
---|
![]() |
Louis Dembitz Brandeis (/ˈbrændaɪs/; November 13, 1856 – October 5, 1941) was an American lawyer who served as an associate justice on the Supreme Court of the United States from 1916 to 1939.
Starting in 1890, he helped develop the "right to privacy" concept by writing a Harvard Law Review article of that title,[3] and was thereby credited by legal scholar Roscoe Pound as having accomplished "nothing less than adding a chapter to our law." He was a leading figure in the antitrust movement at the turn of the century, particularly in his resistance to the monopolization of the New England railroad and advice to Woodrow Wilson as a candidate. In his books, articles and speeches, including Other People's Money and How the Bankers Use It, and The Curse of Bigness, he criticized the power of large banks, money trusts, powerful corporations, monopolies, public corruption, and mass consumerism, all of which he felt were detrimental to American values and culture. He later became active in the Zionist movement, seeing it as a solution to antisemitism in Europe and Russia, while at the same time being a way to "revive sense of the Jewish spirit."
When his family's finances became secure, he began devoting most of his time to public causes, and he was later dubbed the "People's Lawyer."[4] He insisted on taking cases without pay so that he would be free to address the wider issues involved. The Economist magazine called him "A Robin Hood of the law."[5] Among his notable early cases were actions fighting railroad monopolies, defending workplace and labor laws, helping create the Federal Reserve System, and presenting ideas for the new Federal Trade Commission. He achieved recognition by submitting a case brief, later called the "Brandeis brief", which relied on expert testimony from people in other professions to support his case, thereby setting a new precedent in evidence presentation.
In 1916, President Woodrow Wilson nominated Brandeis to a seat on the Supreme Court of the United States. His nomination was bitterly contested, partly because, as Justice William O. Douglas later 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."[6] On June 1, 1916, he was confirmed by the Senate by a vote of 47 to 22,[6] to become one of the most famous and influential figures ever to serve on the high court. His 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 Supreme Court. Some have criticized Brandeis for evading issues related to African-Americans, as he did not author a single opinion on any cases about race during his twenty-three year tenure, and he consistently voted with the Supreme Court majority including in support of racial segregation.
Early life
Family roots
Louis David Brandeis (later: Louis Dembitz Brandeis — see below) was born on November 13, 1856, in Louisville, Kentucky, the youngest of four children. His Frankist parents were immigrants from Bohemia (now in the Czech Republic), who raised him in a secular Jewish household.[7]
His parents, Adolph Brandeis and Frederika Dembitz, both of whom were Frankist Jews,[8] [citation needed] immigrated to the United States from their childhood homes in Prague, Bohemia (then part of the Austrian Empire). They emigrated as part of their extended families for both economic and political reasons. His extended family included Dante scholar Irma Brandeis, whose father was Brandeis' second cousin.[9][10] The Revolutions of 1848 had produced a series of political upheavals and the families, though politically liberal and sympathetic to the rebels, were shocked by the antisemitic riots that erupted in Prague while the rebels controlled it.[11]: 55 In addition, the Habsburg Empire had imposed business taxes on Jews. Family elders sent Adolph Brandeis to America to observe and prepare for his family's possible emigration. He spent a few months in the Midwest and was impressed by the nation's institutions and by the tolerance among the people he met. He wrote home to his wife, "America's progress is the triumph of the rights of man."[11]: 56
The Brandeis family chose to settle in Louisville partly because it was a prosperous river port. His earliest childhood was shaped by the American Civil War, which forced the family to seek safety temporarily in Indiana. The Brandeis family held abolitionist beliefs that angered their Louisville neighbors.[11]: 57 Louis's father developed a grain-merchandising business. Worries about the U.S. economy took the family back to Europe in 1872, but they returned in 1875.[12]: 121
Family life
The Brandeis family were considered a "cultured family", trying not to discuss business or money during dinner, preferring subjects related to history, politics, and culture, or their daily lives. 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.[11]
In their religious beliefs, although his family was Jewish, only his extended family practiced a more conservative form of Judaism, while his parents practiced the split-off movement of Frankism.[8][citation needed] They celebrated the main Christian holidays along with most of their community,[12] treating Christmas as a secular holiday. His parents raised their children to be "high-minded idealists" rather than depending solely on religion for their purpose and inspiration.[11] In later years, his mother, 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.[13]: 28
According to biographer Melvin Urofsky, Brandeis was influenced greatly by his uncle Lewis Naphtali Dembitz. Unlike other members of the extended Brandeis family, Dembitz regularly practiced Judaism and was actively involved in Zionist activities. Brandeis later changed his middle name from David to Dembitz in honor of his uncle, and through his uncle's model of social activism, became an active member of the Zionist movement later in his life.[14]: 18
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."[12]
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 16, the Louisville University of the Public Schools awarded him a gold medal for "excellence in all his studies."[15]: 10 Anticipating an economic downturn, Adolph Brandeis relocated the family to Europe in 1872. After a period spent traveling, Louis spent two years studying at the Annenschule in Dresden, Germany, where he excelled. He later credited his capacity for critical thinking and his desire to study law in the United States to his time there.[12]
Law school
Returning to the U.S. in 1875, Brandeis entered Harvard Law School at the age of 18. His admiration for the wide learning and debating skills of his uncle, Lewis Dembitz, inspired him to study law.[11]: 58 Despite the fact that he entered the school without any financial help from his family, he became "an extraordinary student".[12]
During his time at Harvard, the teaching of law was undergoing a change of method from the traditional, memorization-reliant, "black-letter" case law, to a more flexible and interactive Socratic method, using the casebook method to instruct students in legal reasoning. Brandeis easily adapted to the new methods, becoming active in class discussions,[11] and joined the Pow-Wow club, similar to today's moot courts in law school, which gave him experience in the role of a judge.[12]: 122
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.[16]
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 give up school entirely. He found another alternative: paying fellow law students to read the textbooks aloud, while he tried to memorize the legal principles. Despite the difficulties, his academic work and memorization talents were impressive. He graduated in 1877 as valedictorian and was elected to Phi Beta Kappa.[17] Brandeis achieved the highest grade point average in the history of the school,[12]: 122 a record that stood for eight decades.[11] Brandeis said of that period: "Those years were among the happiest of my life. I worked! For me, the world's center was Cambridge."[13]: 47
Early career in law
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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[18] and accepted a job with a law firm in St. Louis, where he filed his first brief and published his first law review article.[11] After seven months, he tired of the minor casework and accepted an offer by his Harvard classmate, Samuel D. Warren II, 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 also came from a wealthy Boston family and their new firm benefitted from his family's connections.[11]: 59
Soon after returning to Boston, while waiting for the law firm to gain clients, he was appointed law clerk to Horace Gray, 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 Gray."[11]: 59
First law firm: Warren and Brandeis
The 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 firm,[11] garnering Brandeis more financial security and eventually the freedom to take an active role in progressive causes.
As a partner in his law firm, he worked as a consultant and advisor to businesses, but also as a litigator who enjoyed courtroom challenges. In a letter to his brother, he writes, "There is a certain joy in the exhaustion and backache of a long trial which shorter skirmishes cannot afford."[11] On November 6, 1889, he argued for the first time before the U.S. Supreme Court as the Eastern counsel of the Wisconsin Central Railroad in Wisconsin Central Railroad Company v. Price County, 133 US 496 (1889),[19] and won. Soon after, Chief Justice Melville Fuller recommended him to a friend as the best attorney he knew of in the Eastern U.S.[20]
Before taking on business clients, he insisted they agree to two major conditions: that he would only deal with the person in charge, never intermediaries, and he could be allowed to advise on any relevant aspects of the firm's affairs.
He preferred being an adviser and counselor, rather than simply a strategist in lawsuits, which would allow him to advise his clients on how to avoid problems, such as lawsuits, strikes, or other crises.[11] Brandeis explained: "I would rather have clients than be somebody's lawyer."[13]: 86 In a note found among his papers, he reminded himself to "advise client on what he should have, not what he wants."[13]: 20
Brandeis describes how he saw himself as an advisor:
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.[21]
Brandeis was unusual among lawyers since he always turned away cases he considered bad. If he believed a client to be in the wrong, he would persuade his clients to make amends, otherwise he would withdraw from the case.[11] 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."[13]: 233
Brandeis and Warren's firm has been in continuous practice in Boston since its founding in 1879; the firm is known as Nutter McClennen & Fish.
Privacy law
Brandeis defined modern notions of the individual right to privacy in a path-breaking article he published with his partner, Warren, in the Harvard Law Review of December 15, 1890, on "The Right to Privacy." Stimulated by anger at offensive publicity concerning the social activities of Warren's family, it suggested a new legal concept that has had lasting influence. Building on diverse analogies in the law of defamation, of literary property, and of eavesdropping, Brandeis argued that the central, if unarticulated, interest protected in these fields was an interest in personal integrity, "the right to be let alone," that ought to be secured against invasion except for some compelling reason of public welfare. Brandeis saw emotions as a positive expression of human nature, and so desired privacy protection for them as protection against repression of the human spirit.[22]
Between 1888 and 1890, Brandeis and his law partner, Samuel Warren, wrote three scholarly articles published in the Harvard Law Review. The third, "The Right to Privacy," was the most important, with legal scholar Roscoe Pound saying it accomplished "nothing less than adding a chapter to our law."[23]
Brandeis and Warren discussed "snapshot photography," a recent innovation in journalism, that allowed newspapers to publish photographs and statements of individuals without obtaining their consent. They argued that private individuals were being continually injured and that the practice weakened the "moral standards of society as a whole."[11]: 61 [24] They wrote:[24]
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. ... 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.
Legal historian Wayne McIntosh wrote 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."[25]: 24 State courts and legislatures quickly drew on Brandeis and Warren's work. In 1905 the Georgia Supreme Court recognized a right to privacy in a case involving a photograph of the plaintiff published without his consent in an advertisement with a misattributed quotation.[26] By 1909, California, New York, Pennsylvania, Virginia, and Utah had passed statutes establishing the right. In 1939 the American Law Institute's Restatement of Torts also recognized a right to privacy at common law. Years later, after becoming a justice of the Supreme Court, Brandeis discussed the right to privacy in his famous dissenting opinion in Olmstead v. United States.
Personal life and marriage
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In 1890, Brandeis became engaged to his second cousin Alice Goldmark, of New York. He was then 34 years of age and had previously found little time for courtship. Alice was the daughter of Joseph Goldmark, a physician who had immigrated to America from Austria-Hungary 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 Brandeis Gilbert, born in 1893, and Elizabeth Brandeis Rauschenbush, born in 1896.[13]: 72–78
Alice supported her husband's resolve to devote most of his time to public causes. The Brandeis family "lived well but without extravagance."[11]: 63 With the continuing success of his law practice, they later purchased a vacation house in Dedham, where they would spend many of their weekends and summer vacations. Unexpectedly, his wife's health soon became frail, and so in addition to his professional duties, he found it necessary to manage the family's domestic affairs.[12]
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.[15]: 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."[27]
Progressivism
Brandeis became a leader of the Progressive movement, and he used the law as the instrument for social change. From 1897 to 1916, he was heavily involved with multiple reform crusades. He fought in Boston to secure honest traction franchises and, in 1907 launched a six-year fight to prevent the banker J. P. Morgan, who acquired the New York, New Haven and Hartford Railroad, from monopolizing New England's railroads. After an exposé of insurance fraud in 1906, he devised the Massachusetts plan to protect small wage-earners through savings bank life insurance. He supported the conservation movement; in 1910, he emerged as the chief figure in the Pinchot–Ballinger investigation, saying:[28] "We may have democracy, or we may have wealth concentrated in the hands of a few, but we can't have both."[29]
Public advocate
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. Brandeis then took on cases with the help of colleagues, two of whom became partners in 1897 in his new firm: Brandeis, Dunbar, and Nutter.[13]: 82–86
He won his first important victory in 1891, when he persuaded the Massachusetts legislature to make the liquor laws less restrictive and thereby more reasonable and enforceable. He suggested a viable "middle course": by moderating the existing regulations, he told the lawmakers that they would remove liquor dealers' incentive to violate or to corrupt the laws. The legislature was won over by his arguments and changed the regulations.[20]: 34–37
Brandeis wrote that "the law has everywhere a tendency to lag behind the facts of life." He chipped away at assumptions that legal principles should never be changed. He worked to break the traditional hold on legal thinking to make laws that met the needs of the changing community.[30]
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Part of his reasoning and philosophy for acting as a public advocate was later explained in his 1911 book, The Opportunity in the Law:
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.[21]
In one of his first such cases, in 1894, 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 poorhouses. Lincoln, who had visited the poorhouses for years, saw inmates dwelling in misery and the temporarily unemployed thrown in together with the mentally ill as well as hardened criminals.[11] 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.[20]: 52–54
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 control over the city's emerging subway system. Brandeis prevailed, and the legislature enacted his bill.[15]: 57–61
The transit franchise struggle revealed that many of Boston's politicians had placed political friends on the payrolls of the private transit companies. One alderman gave jobs to 200 of his followers. In Boston and other cities, such abuses were part of the corruption in which graft and bribery were common, and in some cases, even newly freed felons resumed their political careers.[20]: 70 "Always the moralist," writes biographer Thomas Mason, "Brandeis declared that 'misgovernment in Boston had reached the danger point.'" He declared that from then on he would keep a record of good and bad political deeds, which would be open to all Boston voters.[13] In 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.[13]: 121
In 1906, Brandeis won a modest victory when the state legislature enacted a measure he drafted designed to make 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.[13]: 121
His anti-corruption philosophy was included in his closing argument for the Glavis-Ballinger case of 1910, in which he stated that the public servant "cannot be worthy of the respect and admiration of the people unless they add to the virtue of obedience some other virtues—the virtues of manliness, of truth, of courage, of willingness to risk positions, of the willingness to risk criticism, of the willingness to risk the misunderstanding that so often comes when people do the heroic thing."[31]: 251
Against monopolies
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In the 1890s, Brandeis began to question his views on American industrialism, write Klebanow and Jonas. He became aware of the growing number of giant companies 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 denounced "cut-throat competition" and worried about monopolies. He also became concerned about the plight of workers and was more sympathetic to the labor movement.[11] His earlier legal battles had convinced him that concentrated economic power could have a negative effect on a free society.[30]: 139
Against big corporations
Brandeis was becoming increasingly conscious of and hostile to powerful corporations and the trend toward bigness in American industry and finance. He argued that great size conflicted with efficiency and added a new dimension to the Efficiency Movement of the Progressive Era. 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.[11]: 76 Although the Sherman Antitrust Act was enacted in 1890, it was not until the 20th century that there was any major effort to apply it.
By 1910, Brandeis noticed that even America's leaders, including President Theodore Roosevelt, were beginning to question the value of antitrust policies. Some business experts felt that nothing could prevent the concentration of industry and so big business was here to stay.[11]: 76 As a result, leaders like Roosevelt began to "regulate" but not to limit the growth and operation of corporate monopolies, but Brandeis wanted the trend to bigness slowed or even reversed. He was convinced that monopolies and trusts were "neither inevitable nor desirable."[11] In support of Brandeis's position were the presidential candidate William Jennings Bryan and Wisconsin Senator Robert M. La Follette Sr.[11]
Brandeis also denied that large trusts were more efficient than the smaller firms 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."
He explained that an executive could not ever 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 aware of the economies of scale and the initially lower prices offered by growing companies, but he noted that once a large company drove out its competition, "the quality of its products tended to decline while the prices charged for them tended to go up." Those companies would become "clumsy dinosaurs, which, if they ever had to face real competition, would collapse of their own weight." He said in an address to the Economic Club of New York in 1912:
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.[32]
Against mass consumerism
Among Brandeis's key themes was the conflict he saw between 19th-century values, with its culture of the small producer, and an emerging 20th-century age of big business and consumerist mass society. Brandeis was hostile to the new consumerism. Though himself a millionaire, Brandeis disliked wealthy persons who engaged in conspicuous consumption or were ostentatious. He did little shopping himself, and unlike his wealthy friends who owned yachts, he was satisfied with his canoe.
He hated advertising which he said "manipulated" average buyers. He realized that newspapers and magazines were dependent on advertising for their revenues, which caused them to be "less free" than they should be. He said that national advertisers also undermined the traditional relationship between consumers and local businesses. He urged journalists to "teach the public to look with suspicion upon every advertised article"[16]: 107 so that they would not suffer from marketing manipulation by giant corporations.[16]: 107
Becoming "the people's lawyer"
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Brandeis was often referred to as "the people's lawyer."[11]: 66 He no longer accepted payment for "public interest" cases even when they required pleadings before judges, legislative committees, or administrative agencies. He began to give his opinion by writing magazine articles, making speeches, and helping form interest groups. He insisted on serving without pay so that he could freely address the wider issues involved beyond the case at hand, rather than direct financial incentive.[11]: 66
In an address to Harvard law students, he suggested that they should try to serve the people:
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.[33]
Developing new life insurance system
In March 1905, he became counsel to a New England policyholder's committee, which was concerned that its scandal-ridden insurance company would file bankruptcy and that the policyholders would lose their investments and insurance protection. He served without pay to be free to address the wider issues involved.
He spent the next year in studying the workings of the life insurance industry, often writing articles and giving speeches about his findings, at one point describing its practices as "legalized robbery."[15]: 76–77 By 1906, he had concluded that life insurance was a "bad bargain for the vast majority of policyholders," mostly because of the inefficiency of the industry. He also learned that a little-understood clause in the policies of low-wage workers allowed the policy to be canceled when they missed a payment and that most policies lapsed; only one out of eight policyholders received benefits, which led to large profits for insurance companies.[11]
Brandeis then created a "groundswell" in Massachusetts with his campaign to educate the public. His efforts, with the help of progressive businessmen, social reformers, and trade unionists, led to the creation of a new "savings bank life insurance" system. By March 1907, the Savings Bank Insurance League had 70,000 members, and Brandeis's face and name now appeared regularly in newspapers.[13]: 164 He next 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 called that bill one of "his greatest achievements" and kept a watchful eye on it.[13]: 177–180
Preventing J. P. Morgan's railroad monopoly
While still involved with the life insurance industry, he took on another public interest case: the struggle to prevent New England's largest railroad company, New Haven Railroad, from gaining control of its chief competitor, the Boston and Maine Railroad.[34] 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. 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."[11]: 69
J. P. Morgan had pursued an expansion policy by acquiring many of the line's competitors to make the New Haven into a single unified network. Its acquisitions included railways, trolleys, and shipping companies.[35]: 41–52 In June 1907, Brandeis was asked by Boston and Maine stockholders to present their cause to the public, a case that he again took on by insisting on serving without payment, "leaving him free to act as he thought best."
After months of extensive research, Brandeis published a 70-page booklet in which he argued that New Haven's acquisitions were putting its financial condition in jeopardy, and he predicted that within a few years, it would be forced to cut its dividends or to become insolvent. He spoke publicly to Boston's citizens warning them that the New Haven "sought to monopolize the transportation of New England." He soon found himself under attack by not only the New Haven but also by many newspapers, magazines, chambers of commerce, Boston bankers, and college professors.[11]: 69 "I have made," he wrote to his brother, "more enemies than in all my previous fights together."[11]: 69
However, in 1908, the New Haven's proposed merger was dealt "several stunning blows." Among them, the Massachusetts Supreme Judicial Court ruled that New Haven had acted illegally during earlier acquisitions. Brandeis met twice with US President Theodore Roosevelt, who convinced the US Department of Justice to file suit against New Haven for antitrust violations. At a subsequent hearing in front of the Interstate Commerce Commission in Boston, New Haven's president "admitted that the railroad had maintained a floating slush fund that was used to make 'donations' to politicians who cooperated."[35]: 49–154
Within a few years, New Haven's finances were undone, just as Brandeis had predicted. By the spring of 1913, the Department of Justice launched a new investigation, and the next year, the Interstate Commerce Commission charged the New Haven with "extravagance and political corruption and its board of directors with dereliction of duty."[11] 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."[13]: 203–214 A newspaper in 1914 describes Brandeis as someone "whose prophecies of disaster to the New Haven Railroad have been fully justified."[36]
In 1934, Brandeis had another legal confrontation with Morgan, this one relating to securities regulation bills. J. P. Morgan's resident economist, Russell Leffingwell, felt it necessary to remind their banker, Tom Lamont, about the person with whom they would be dealing:
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.[37]
Banking historian Ron Chernow wrote, "For the House of Morgan, Louis Brandeis was more than just a critic, he was an adversary of almost mythical proportion."[37]: 379
Upholding workplace laws with the "Brandeis Brief"
In 1908, he chose to represent the state of Oregon in the case of Muller v. Oregon before the US Supreme Court. At issue was whether it was constitutional for a state law to limit the hours worked by female workers. Until then, it had been 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 that, he filed what has become known today as the "Brandeis Brief." It was much shorter than traditional briefs 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 displaying that "when women worked long hours, it was destructive to their health and morals."[15]: 120–121 The brief was packed full of social research and data to demonstrate the public interest in a ten-hour limitation on women's working hours. His brief proved decisive in Muller v. Oregon, the first Supreme Court ruling to accept the legitimacy of a scientific examination of the social conditions, in addition to the legal facts involved in a case.[38]
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 wrote that with the Supreme Court affirming Oregon's minimum wage law, Brandeis "became the leading defender in the courts of protective labor legislation."[13]: 250–253 [39] 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."[6]
One of the hallmarks of the case was Brandeis's minimizing of common-law jurisprudence, in favor of extralegal information relevant to the case. According to the 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.[40] John Vile added that this new "Brandeis Brief" was increasingly used, most notably in the Brown v. Board of Education case in 1954 that desegregated public schools.[12]: 123
Supporting President Wilson
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Brandeis's positions on regulating large corporations and monopolies carried over into the presidential campaign of 1912. Democratic candidate Woodrow Wilson made it a central issue, part of the larger debate over the future of the economic system and the role of the national government. While the Progressive Party 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 unfair business practices that made them possible.[41]: 1–24
Although originally a La Follette Republican, Brandeis switched to the Democrats and urged his friends and associates to join him.[42][30]: 139 The two men met for the first time at a private conference in New Jersey that August and spent three hours discussing economic issues. Brandeis left the meeting a "confirmed admirer" of Wilson, who he said was likely to make an "ideal president."[13] Wilson thereafter began using the term "regulated competition," the concept that Brandeis had developed, and made it the essence of his program. In September, Wilson asked Brandeis to set forth explicitly how competition can be effectively regulated.[13]: 375–377
Brandeis did so, and after Wilson's victory that November, he told Brandeis, "You were yourself a great part of the victory." Wilson considered nominating Brandeis first for Attorney General and later for Secretary of Commerce, but backed down after a loud outcry from corporate executives that Brandeis had earlier opposed in court battles. Wilson concluded that Brandeis was too controversial a figure to appoint to his cabinet.[20]: 257–258
Nevertheless, during Wilson's first year as president, Brandeis was instrumental in shaping the new Federal Reserve Act.[43] His arguments had been decisive in breaking deadlock on banking issues. Wilson endorsed Brandeis's proposals and those of Secretary of State William Jennings Bryan, both of whom felt that the banking system needed to be democratized and its currency issued and controlled by the government.[30]: 139 They convinced Congress to enact the Federal Reserve Act in December 1913.[43]: 28–31
In 1913, Brandeis wrote a series of articles for Harper's Weekly that suggested ways of curbing the power of large banks and money trusts. In one of those, "What Publicity Can Do",[44] he authored the quote regarding governmental transparency for which he is best remembered, over a century later: "Sunlight is said to be the best of disinfectants."[45]
And in 1914 he published a book entitled Other People's Money and How the Bankers Use It.[46]
He also urged the Wilson administration to develop proposals for new antitrust legislation to give the Department of Justice the power to enforce antitrust laws, with Brandeis becoming one of the architects of the Federal Trade Commission. Brandeis also 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."[16]: 82
Nomination and confirmation to the Supreme Court
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On January 28, 1916, Wilson nominated Brandeis as an associate justice of the United States Supreme Court, to a seat vacated by Joseph R. Lamar.[47][48] His nomination was bitterly contested and denounced by conservative Republicans, including former President William Howard Taft, whose credibility was damaged by Brandeis in early court battles in which he called Taft a "muckraker".[13]: 470 Further opposition came from members of the legal profession, including former Attorney General George W. Wickersham and former presidents of the American Bar Association, such as former Senator and Secretary of State Elihu Root of New York, who claimed Brandeis was "unfit" to serve on the Supreme Court.[13]: 470–475
The controversy surrounding Brandeis's nomination was so great that the Senate Judiciary Committee, for the first time in its history, held a public hearing on the nomination, allowing witnesses to appear before the committee and offer testimony both in support of and in opposition to Brandeis's confirmation. While previous nominees to the Supreme Court had been confirmed or rejected by a simple up-or-down vote on the Senate floor, often on the same day on which the President had sent the nomination to the Senate, a then-unprecedented four months lapsed between Wilson's nomination of Brandeis and the Senate's final confirmation vote.[49]
What Brandeis's opponents most objected to was his "radicalism." The Wall Street Journal wrote of Brandeis, "In all the anti-corporation agitation of the past, one name stands out... where others were radical, he was rabid."[11] And the New York Times claimed that having been a noted "reformer" for so many years, he would lack the "dispassionate temperament that is required of a judge."[50]: 73 Brandeis's successor, William O. Douglas, many years later, wrote that the nomination of Brandeis "frightened the Establishment" because he was "a militant crusader for social justice."[6]
According to the legal historian Scott Powe, much of the opposition to Brandeis's appointment also stemmed from "blatant anti-semitism."[49] Taft would accuse Brandeis of using his Judaism to curry political favor, and Wickersham would refer to Brandeis's supporters and Taft's critics as "a bunch of Hebrew uplifters."[51] Senator Henry Cabot Lodge privately complained, "If it were not that Brandeis is a Jew, and a German Jew, he would never have been appointed".[52]
Those in favor of seeing him join the court were just as numerous and influential. Brandeis had many friends who admired his legal acumen in fighting for progressive causes. They mounted a national publicity campaign that marginalized anti-semitic slurs in the legal profession.[53] Supporters included attorneys, social workers, and reformers with whom he had worked on cases, and they testified eagerly on his behalf. Harvard law professor Roscoe Pound told the committee that "Brandeis was one of the great lawyers" and predicted 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."[50]: 208
In May, when the Senate Judiciary Committee asked the Attorney General to provide the letters of endorsement that traditionally accompanied a Supreme Court nomination, Attorney General Thomas Watt Gregory found that there were none. Wilson had made the nomination on the basis of personal knowledge. In reply to the committee, Wilson wrote a letter to the chairman, Senator Charles Culberson, testifying to his own personal estimation of the nominee's character and abilities. He called his nominee's advice "singularly enlightening, singularly clear-sighted and judicial, and, above all, full of moral stimulation." He added:
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.[54]
A month later, on June 1, the Senate confirmed his nomination by a vote of 47 to 22. Forty-four Democratic Senators and three Republicans (Robert La Follette, George Norris, and Miles Poindexter) voted in favor of confirming Brandeis. Twenty-one Republican senators and one Democrat (Francis G. Newlands) voted against his confirmation.[55][56] He was sworn into office on June 5, 1916.[1]
Supreme Court tenure
Brandeis served on the U.S. Supreme Court for 23 years.[57] On the court, Brandeis continued to be a strong voice for progressivism.[58] He is widely regarded as one of the most important and influential justices in the history of the United States Supreme Court, often being ranked among the very "greatest" justices in the court's history.[57][58]
Some have criticized Brandeis for having, as a judge, evaded issues related to African-Americans, since he did not author a single opinion on any cases about race during his twenty-three year tenure, and consistently voted with the court majority including in support of racial segregation.[59]
While on the Court Brandeis kept politically active behind the scenes, as was then acceptable. He was an advisor to Franklin Roosevelt's New Deal through intermediaries.[60] Many of his disciples held influential jobs, especially in the Justice Department. Brandeis and Felix Frankfurter (who served together very briefly on the Court) often collaborated on political issues.[61][62] In October 1918, he helped Thomas Garrigue Masaryk to create the "Washington Declaration" for the founding of a new independent Czechoslovakia.[63]
Leading cases
Gilbert v. Minnesota (1920) – Freedom of speech
There was a strong conservative streak in the U.S. beginning with World War I and into the 1920s, and this conservatism was reflected in decisions of the Supreme Court. Both Brandeis and Justice Oliver Wendell Holmes Jr. often dissented and became known for consistently challenging the majority's view. (However, both men approved the Selective Draft Law Cases which upheld the constitutionality of conscription, the restrictive Schenck v. United States decision in 1919 and the pro-sterilization Buck v. Bell decision in 1927). These dissents were most noteworthy in cases dealing with the free speech rights of defendants who had expressed opposition to the military draft. Justice Holmes developed the concept of "clear and present danger" as the test any restriction on speech had to meet. Both Holmes and Brandeis used this doctrine in other cases. Vile points out that 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."[12]: 128 And according to legal historian John Raeburn Green, Brandeis's philosophy influenced Justice Holmes himself, and writes that "Justice Holmes's 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."[64]
One such case was Gilbert v. Minnesota (1920) which dealt with a state law prohibiting 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. ... [T]he 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."[65]
Legal author Ken Gormley says 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."[66] In 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.
Underwood Typewriter Co. v. Chamberlain (1920) – States' right to tax income
The first modern state income tax was adopted by Wisconsin in 1911 (in effect in 1912).[67] It wasn't long before the Court had a chance to consider the tax's Constitutionality. Justice Brandeis wrote the unanimous opinion in Underwood Typewriter Co. v. Chamberlain (254 U.S. 113 (1920)). In Underwood, Justice Brandeis wrote that the states could tax the income of corporations doing a multistate business as long as the state taxed only the state's apportioned share of the corporation's income. He also first articulated what ultimately came to be known as the unitary business principle, when he wrote for the Court "The profits of the corporation were largely earned by a series of transactions beginning with manufacture in Connecticut and ending with sale in other states. In this, it was typical of a large part of the manufacturing business conducted in the state.... [The legislature] therefore adopted a method of apportionment which, for all that appears in this record, reached, and was meant to reach, only the profits earned within the state." (Underwood, 254 U.S. at 120–121.)[68] It may be worth noting that although the Underwood Typewriter Company no longer is in existence, some of their typewriters may be found at the Charles River Museum of Industry & Innovation in Waltham, Massachusetts—less than two miles from Brandeis University.
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."[69]: 85 In their concurring opinion, they wrote:
Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of free speech to free men from bondage of irrational fears ... Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty ...
Olmstead v. United States (1928) – Right of privacy
In his widely cited dissenting opinion in Olmstead v. United States (1928), Brandeis relied on thoughts he developed in his 1890 Harvard Law Review article "The Right to Privacy."[70] 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.[71]
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 United States v. Harris, 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"[25][72]
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."[73]: 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.[25]: 26
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 Potter Stewart wrote the opinion overturning Olmstead in Katz v. U.S. Wayne McIntosh adds, "A quarter-century after his death, another component of Justice Brandeis's privacy design was enshrined in American law."[25]
As McIntosh notes, "the spirit, if not the person, of Louis Brandeis, has continued to stimulate the constitutional mutation of a 'right to privacy.'"[25] 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."[74] Further, in 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."[75]
Packer Corporation v. Utah (1932) – Captive audience and free speech
In Packer Corporation v. Utah (1932), Brandeis was to advance an exception to the right of free speech. In this case, a unanimous Court, led by Brandeis, found a clear distinction between advertising placed in newspapers and magazines with those placed on public billboards. The case was a notable exception and dealt with a conflict between widespread First Amendment rights with the public's right of privacy and advanced a theory of the "captive audience." Brandeis delivered the opinion of the Court to advance privacy interests:
Advertisements of this sort are constantly before the eyes of observers on the streets and in street cars to be seen without the exercise of choice or volition on their part. Other forms of advertising are ordinarily seen as a matter of choice on the part of the observer. The young people as well as the adults have the message of the billboard thrust upon them by all the arts and devices that skill can produce. In the case of newspapers and magazines, there must be some seeking by the one who is to see and read the advertisement. The radio can be turned off, but not so the billboard or street car placard.
Burnet v. Coronado Oil & Gas Co. (1932) – Stare decisis
Brandeis forever changed the way people think about stare decisis, one of the most distinctive principles of the common law legal system. In his widely cited dissenting opinion in Burnet v. Coronado Oil & Gas Co. (1932), Brandeis "catalogued the Court’s actual overruling practices in such a powerful manner that his attendant stare decisis analysis immediately assumed canonical authority."[76] Brandeis wrote:
Stare decisis is usually the wise policy, because, in most matters, it is more important that the applicable rule of law be settled than that it be settled right.[77]
The rule of stare decisis descended from Brandeis's formulation would later split into strong and weak forms as a result of the disagreement between Chief Justice William Rehnquist and Associate Justice Thurgood Marshall in Payne v. Tennessee (1991).[78]
New Deal cases
Along with Benjamin Cardozo and Harlan F. Stone, Brandeis was considered to be in the liberal wing of the court—the so-called Three Musketeers who stood against the conservative Four Horsemen.
Louisville v. Radford (1935) – limiting presidential discretion
According to John Vile, in the final years of his career, like the rest of the Court, he "initially combated the New Deal of Franklin D. Roosevelt, which went against everything Brandeis had ever preached in opposition to the concepts of 'bigness' and 'centralization' in the federal government and the need to return to the states."[12]: 129 In one case, Louisville v. Radford (1935), he spoke for a unanimous court when he declared the Frazier-Lemke Act unconstitutional. The act prevented mortgage-holding banks from foreclosing on their property for five years and forced struggling farmers to continue paying based on a court-ordered schedule. "The Fifth Amendment," he declared, "commands that however great the Nation's need, private property shall not be thus taken over without just compensation."
Schechter Poultry Corp. v. United States (1935) – NIRA is unconstitutional
In Schechter Poultry Corp. v. 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.[11] 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 US history."[79] Speaking to aides of Roosevelt, Justice Louis Brandeis remarked that, "This is the end of this business of centralization, and I want you to go back and tell the president that we're not going to let this government centralize everything."[80]
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," leading historian Nelson Dawson to conclude that "Brandeis ... was not alone in thinking that Roosevelt's scheme threatened the integrity of the institution."[81]: 50–53
Erie Railroad Co. v. Tompkins (1938) – Federal versus state laws
His last important judicial opinion was also one of the most significant of his career, according to Klebanow and Jonas. In Erie Railroad Co. v. Tompkins (1938), the Supreme Court addressed the issue of whether federal judges apply state law or federal common law where the parties to a lawsuit are from different states. Writing for the Court, Brandeis overruled the ninety-six-year-old doctrine of Swift v. Tyson (1842), and held that there was no such thing as a "federal general common law" in cases involving diversity jurisdiction. This concept became known as the Erie Doctrine. Applying the Erie Doctrine, federal courts now must conduct a choice of law analysis, which generally requires that the courts apply the law of the state where the injury or transaction occurred. "This ruling," concluded Klebanow and Jonas, "fits in well with Brandeis's goals of strengthening the states and reversing the long-term trend toward centralization and bigness."[11]
Other cases
In 1919, Brandeis sided with the unanimous majority on the court in ruling that Eugene V. Debs' protests against US involvement in World War I violated the Espionage Act of 1917 in Debs v. United States, though later that year he had an apparent change of heart in Abrams v. United States when he dissented with the majority opinion to express that political dissent was protected by the First Amendment.[82][83]
Zionism
Relatively late in life the secular Brandeis also became a prominent figure in the Zionist movement. He became active in the Federation of American Zionists in 1912, as a result of a conversation with Jacob de Haas, according to some.[84] His involvement provided the nascent American Zionist movement one of the most distinguished men in American life and a friend of the next president. Over the next several years he devoted a great deal of his time, energy, and money to championing the cause. With the outbreak of World War I in Europe, the divided allegiance of its membership rendered the World Zionist Organization impotent.[85] American Jews then assumed a larger responsibility independent of Zionists in Europe. The Provisional Executive Committee for Zionist Affairs was established in New York for this purpose on August 20, 1914, and Brandeis was elected president of the organization.[86] As president from 1914 to 1918, Brandeis became the leader and spokesperson of American Zionism. He embarked on a speaking tour in the fall and winter of 1914–1915 to garner support for the Zionist cause, emphasizing the goal of self-determination and freedom for Jews through the development of a Jewish homeland.[87]
Unlike the majority of American Jews at the time, he felt that the re-creation of a Jewish national homeland was one of the key solutions to antisemitism and the "Jewish problem" in Europe and Russia, while at the same time a way to "revive the Jewish spirit." He explained his belief in the importance of Zionism in a famous speech he gave at a conference of Reform Rabbis in April 1915:[87]
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.
He also explained his belief that Zionism and patriotism were compatible concepts and should not lead to charges of "dual loyalty" which worried the rabbis and the dominant American Jewish Committee:
Let no American imagine that Zionism is inconsistent with Patriotism. Multiple loyalties are objectionable only if they are inconsistent. A man is a better citizen of the United States for being also a loyal citizen of his state, and of his city; or for being loyal to his college. ... Every American Jew who aids in advancing the Jewish settlement in Palestine, though he feels that neither he nor his descendants will ever live there, will likewise be a better man and a better American for doing so. There is no inconsistency between loyalty to America and loyalty to Jewry.[87]
Early in the war, Jewish leaders determined that they needed to elect a special representative body to attend the peace conference as spokesman for the religious, national and political rights of Jews in certain European countries, especially to guarantee that Jewish minorities were included wherever minority rights were recognized. Under the leadership of Brandeis, Stephen Wise and Julian Mack, the Jewish Congress Organization Committee was established in March 1915. The subsequent vehement debate about the idea of a "congress" stirred the feelings of American Jews and acquainted them with the Jewish problem.[86] Brandeis's efforts to bring in the American Jewish Committee and some other Jewish organizations were unsuccessful; these organizations were quite willing to participate in a conference of appointed representatives, but were opposed to Brandeis's idea of convening a congress of delegates elected by the Jewish population.
The following year, however, delegates representing over one million Jews came together in Philadelphia and elected a National Executive Committee with Brandeis as honorary chairman. On April 6, 1917, America entered the war. On June 10, 1917, 335,000 American Jews cast their votes and elected their delegates who, together with representatives of some 30 national organizations, established the American Jewish Congress on a democratically elected basis,[86] but further efforts to organize awaited the end of the war.
Brandeis also brought his influence to bear on the Wilson administration in the negotiations leading up to the Balfour Declaration and the Paris Peace Conference. In July 1919 he visited Palestine.
Later in 1919 Brandeis broke with Chaim Weizmann, the leader of European Zionism. In 1921 Weizmann's candidates, headed by Louis Lipsky, defeated Brandeis's for political control of the Zionist Organization of America. Brandeis resigned from the ZOA, along with his closest associates Rabbi Stephen S. Wise, Judge Julian W. Mack and Felix Frankfurter. His ouster was devastating to the movement, and by 1929 there were no more than 18,000 members in the ZOA.[citation needed] Nonetheless, he remained active in philanthropy directed at Jews in Palestine. In the summer of 1930, these two factions and visions of Zionism would come to a compromise largely on Brandeis's terms, with a changed leadership structure for the ZOA.[88] In the late 1930s he endorsed immigration to Palestine in an effort to help European Jews escape genocide when Britain denied entry to more Jews.[89]
Death
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Brandeis retired from the Supreme Court on February 13, 1939, and he died on October 5, 1941, aged 84.[47] Both Brandeis and his wife are interred beneath the portico of the Brandeis School of Law of the University of Louisville, in Louisville, Kentucky.[90][91] Brandeis himself made the arrangements that made the law school one of only thirteen Supreme Court repositories in the U.S. His professional papers are archived at the library there.[92]
Legacy
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According to Constitutional Law historian Alfred H. Kelly:
- Throughout his long public career, Louis D. Brandeis consistently pursued one major ideal: that of a liberal progressive society based on democracy and social justice. Brandeis early became convinced that the gigantic trusts which by 1900 had come to dominate large segments of American business not only were hopelessly inefficient in a narrow economic sense but also menaced the very existence of political democracy itself….[H]e sought to ameliorate what he called the “curse of bigness” and to establish a new industrial democracy based on a partnership between business, organized labor, and the public….He never challenged the fundamentals of capitalism itself; rather he looked back with nostalgic longing toward the vanished Jeffersonian notion of a self-regulated economic order characterized by competition among a great variety of small entrepreneurs….In his last years on the Court, Brandeis became a fairly consistent judicial protagonist of the New Deal….Before his retirement from the Court, Brandeis was rewarded by seeing the majority justices accept not only the major constitutional premises of the New Deal but also his own positions on First Amendment liberties, on labor legislation, and a judicial abuse of the due process clause. Thus Brandeis emerges finally as a lifelong champion of an open libertarian democratic society….[93]
Brandeis lived to see many of the ideas that he had championed become the law of the land. Wages and hours legislation was now accepted as constitutional, and the right of labor to organize was protected by law. His spirited, eloquent defense of free speech and the right of privacy have had a continuing, powerful influence upon the Supreme Court and, ultimately, upon the life of the entire nation. The Economist magazine has called him "A Robin Hood of the law,"[94] and former Secretary of State Dean Acheson, his early law clerk, was "impressed by a man whose personal code called for ... the zealous molding of the lives of the underprivileged so that paupers might achieve moral growth."[95]: 246
Wayne McIntosh writes of him, "In our national juristic temple, some figures have been accorded near-Olympian reverence ... a part of that legal pantheon is Louis D. Brandeis – all the more so, perhaps because Brandeis was far more than a great justice. He was also a social reformer, legal innovator, labor champion, and Zionist leader ... And it was as a judge that his concepts of privacy and free speech ultimately, if posthumously, resulted in virtual legal sea changes that continue to resonate even today." Former Justice William O. Douglas wrote, "he helped America grow to greatness by the dedications of which he made his life."[6]
Michael Fatale, General Counsel for the Massachusetts Department of Revenue[96] and Adjunct Professor of state taxation at both Boston College Law School[97] and Boston University School of Law,[98] writes in a Letter to the Editor in State Tax Notes that Justice Brandeis' contributions in the field of State Taxation are underappreciated. Justice Brandeis laid the foundation for the modern approach to state taxation of income in his opinion in the Underwood Typewriter case.[99] That foundation, in turn, has had important application in the global taxation of income of multinationals.
The U.S. Postal Service in September 2009 honored Brandeis by featuring his image on a new set of commemorative stamps along with U.S. Supreme Court associate justices Joseph Story, Felix Frankfurter and William J. Brennan Jr.[100] In the Postal Service announcement about the stamp, he was credited with being "the associate justice most responsible for helping the Supreme Court shape the tools it needed to interpret the Constitution in light of the sociological and economic conditions of the 20th century." The Postal Service honored him with a stamp image in part because, their announcement states, he was "a progressive and champion of reform, [and] Brandeis devoted his life to social justice. He defended the right of every citizen to speak freely, and his groundbreaking conception of the right to privacy continues to impact legal thought today."[101]
Brandeis was a founding member of the Massachusetts Bar Association.[102]
Brandeis is a character in the play The Magnificent Yankee, about Oliver Wendell Holmes. In the 1950 movie he is played by Eduard Franz.
Namesake institutions
- Brandeis University, in Waltham, Massachusetts. Several awards given at the school 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.
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- The University of Louisville's Louis D. Brandeis School of Law. The school's principal law review publication was named the Brandeis Law Journal until it was renamed in 2007. The law school's Louis D. Brandeis Society awards the Brandeis Medal.
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- The Brandeis University Law Journal, one of the country's few undergraduate law publications, launched in 2009.[103]
- The Louis D. Brandeis Center for Human Rights under Law, a civil rights organization established in Washington, D.C. to combat antisemitism in higher education.
- Kibbutz Ein Hashofet (Hebrew: עין השופט) in Israel, founded 1937. "Ein Hashofet" means "Spring of the Judge", a name chosen to honor Brandeis's Zionism.
- Kfar Brandeis (lit: Brandeis village) is a suburb of the Israeli city of Hadera.
- 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.
- The Brandeis School, a private Jewish day-school in Lawrence, New York.
- The Brandeis School of San Francisco, a K–8 independent coeducational Jewish day school in San Francisco, California (formerly one of two campuses of Brandeis Hillel Day School).
- Brandeis Marin, an independent Jewish school in San Rafael, California (formerly one of two campuses of Brandeis Hillel Day School).
- The Brandeis-Bardin Institute, in Simi Valley, near Los Angeles, a Jewish educational outreach resource.
- The New York City Public Schools' Louis D. Brandeis High School, named for the justice and dissolved in 2012, though the building, which houses several smaller educational units, is now called the Brandeis High School Campus.[104]
- Louis D. Brandeis High School, in San Antonio, Texas, where the Northside Independent School District names all of its comprehensive high schools for Supreme Court Justices
- Louis D. Brandeis Law Society, in Philadelphia, a "Jewish law society ... dedicated to advancing and enriching the personal and professional interests of [its] members of the Bench and Bar."
- Louis D. Brandeis AZA #932, a B'nai B'rith Youth Organization Chapter in Dallas.
- Brandeis AZA #1519, a B'nai B'rith Youth Organization Chapter in Rockville, Maryland.
- Brandeis AZA #1999, a B'nai B'rith Youth Organization Chapter in Minneapolis, Minnesota
- Hadassah-Brandeis Apprentice School of Printing in Jerusalem, Israel
- Brandeis Dining Center, at Creighton University in Omaha, Nebraska
Selected opinions
- Ashwander v. Tennessee Valley Authority (1936) (concurring)
- Erie Railroad Co. v. Tompkins (1938) (majority)
- Gilbert v. Minnesota (1920) (dissenting) at the Wayback Machine (archived April 23, 2010)
- New State Ice Co. v. Liebmann (1932) (dissenting)
- Olmstead v. United States (1928) (dissenting)
- Ruthenberg v. Michigan (1927) (unpublished dissent) at the Wayback Machine (archived February 10, 2009)
- Sugarman v. United States (1919) (majority)
- United States ex rel Milwaukee Social Democratic Publishing Co. v. Burleson (1921) (dissenting) at the Stanford Web Archive (archived July 25, 2008)
- Whitney v. California (1927) (concurring) at the Stanford Web Archive (archived July 25, 2008)
- The Collected Supreme Court Opinions of Louis D. Brandeis
- Pennsylvania Coal Co. v. Mahon (1922) (dissenting)
- Loughran v. Loughran (1934) (majority)
See also
- Louis Brandeis House
- List of justices of the Supreme Court of the United States
- List of United States Supreme Court justices by time in office
- United States Supreme Court cases during the Hughes Court
- United States Supreme Court cases during the Taft Court
- United States Supreme Court cases during the White Court
- List of people on the cover of Time Magazine: 1920s
Notes
- ^ a b "Justices 1789 to Present". Washington, D.C.: Supreme Court of the United States. Archived from the original on April 15, 2010. Retrieved February 14, 2022.
- ^ Marc Eric McClure (2003). Earnest Endeavors: The Life and Public Work of George Rublee. Greenwood. p. 76. ISBN 9780313324093. Archived from the original on February 1, 2021. Retrieved October 31, 2016.
- ^ Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890), available at HeinOnline Archived October 25, 2021, at the Wayback Machine.
- ^ "About". brandeis.edu. Archived from the original on October 13, 2022. Retrieved November 16, 2022.
- ^ "Let's look at the facts". The Economist. ISSN 0013-0613. Archived from the original on November 16, 2022. Retrieved November 16, 2022.
- ^ a b c d e Douglas, William O. (July 5, 1964). "Louis Brandeis: Dangerous Because Incorruptible". The New York Times. p. BR3. Archived from the original on February 25, 2021. Retrieved October 4, 2020.
- ^ "Heroes – Trailblazers of the Jewish People". Beit Hatfutsot. Archived from the original on November 17, 2019. Retrieved November 17, 2019.
- ^ a b Arthur Mandel, Militant Messiah, Or, the Flight from the Ghetto: the Story of Jacob Frank and the Frankist Movement, Atlantic Highlands, NJ: Humanities Press, 1979, Chapter 22.
- ^ Ahern, John (February 23, 1986). "BETWEEN THE LOVE OF CLIZIA AND MOSCA". The New York Times. ISSN 0362-4331. Archived from the original on September 9, 2022. Retrieved July 14, 2022.
- ^ Cary, Joseph (October 16, 1993). Three Modern Italian Poets: Saba, Ungaretti, Montale. University of Chicago Press. ISBN 978-0-226-09527-1. Archived from the original on January 28, 2024. Retrieved July 28, 2022.
- ^ a b c d e f g h i j k l m n o p q r s t u v w x y z aa ab ac ad ae af ag Klebanow, Diana, and Jonas, Franklin L. People's Lawyers: Crusaders for Justice in American History, M.E. Sharpe (2003)
- ^ a b c d e f g h i j k Vile, John R. Great American Judges: An Encyclopedia, ABC-CLIO (2003)
- ^ a b c d e f g h i j k l m n o p q r Mason, Thomas A. Brandeis: A Free Man's Life, Viking Press (1946)
- ^ Urofsky, Melvin I. Louis D. Brandeis: A Life. New York: Pantheon (2009) ISBN 0-375-42366-4
- ^ a b c d e Strum, Philippa. Louis D. Brandeis: Justice for the People, Harvard University Press (1984)
- ^ a b c d McCraw, Thomas K. Prophets of Regulation, Harvard University Press (1984)
- ^ "PBK – Phi Beta Kappa Supreme Court Justices". Archived from the original on August 3, 2020. Retrieved April 15, 2020.
- ^ "Jefferson National Expansion Memorial" (PDF). Archived (PDF) from the original on February 28, 2008. Retrieved January 23, 2008.
- ^ "Wisconsin C.R. Co. v. Price County". Archived from the original on June 25, 2022. Retrieved November 16, 2020.
- ^ a b c d e : 86 Lief, Alfred. Brandeis: The Personal History of an American Ideal, Stackpole Sons (1936)
- ^ a b Brandeis, Louis. The Opportunity in the Law, Harvard University Press (1911)
- ^ Grant B. Mindle, "Liberalism, Privacy, and Autonomy," Journal of Politics (1989) 51#3 pp. 575–598 in JSTOR Archived September 11, 2018, at the Wayback Machine
- ^ Solove, Daniel J., Rotenberg, Marc, and Schwartz, Paul M., Privacy, Information, and Technology (Aspen Publishers, 2006), 9
- ^ a b Warren and Brandeis, The Right To Privacy Archived July 12, 2015, at the Wayback Machine, 4 Harvard Law Review 193 (1890)
- ^ a b c d e McIntosh, Wayne V., Judicial Entrepreneurship: the Role of the Judge in the Marketplace of Ideas, Greenwood Publishing (1997)
- ^ Pavesich v. New England Life Ins. Co., 122 Ga. 190 (1905).
- ^ Louis D. Brandeis (June 30, 1973). Letters of Louis D. Brandeis: Volume III, 1913–1915: Progressive and Zionist. SUNY Press. pp. 79–80. ISBN 978-1-4384-2259-6. Archived from the original on August 20, 2016. Retrieved February 19, 2016.
- ^ Melvin I. Urofsky, Louis D. Brandeis and the Progressive Tradition (1981)
- ^ As quoted by Raymond Lonergan in Mr. Justice Brandeis, Great American (1941), p. 42.
- ^ a b c d Piott, Steven L. American Reformers, 1870–1920, Rowman & Littlefield (2006)
- ^ Bruce, Will M. Classics of Administrative Ethics, Westview Press (2001)
- ^ Brandeis, Louis. "The Regulation of Competition Versus the Regulation of Monopoly" Archived June 30, 2015, at the Wayback Machine, address to the Economic Club of New York on November 1, 1912
- ^ Brandeis, Louis. "Opportunity in the Law" Archived June 29, 2015, at the Wayback Machine, address delivered May 4, 1905, before the Harvard Ethical Society
- ^ Henry Lee Staples, and Alpheus Thomas Mason, The Fall of a Railroad Empire: Brandeis and the New Haven Merger Battle (Syracuse University Press, 1947).
- ^ a b Weller, John L., The New Haven Railroad: its Rise and Fall, Hastings House (1969)
- ^ "Louis D. Brandeis". The Independent. July 27, 1914. Retrieved July 24, 2012.
- ^ a b Chernow, Ron. The House of Morgan: An American Banking Dynasty and the Rise of Modern Finance, Grove Press (2001)
- ^ Urofsky, Melvin I. (2005). "Louis D. Brandeis: Advocate Before and On the Bench". Journal of Supreme Court History. 30 (1): 31–46. doi:10.1111/j.1059-4329.2005.00096.x. S2CID 145579255.
- ^ Brandeis, Louis. The Brandeis Brief Archived June 30, 2015, at the Wayback Machine, Muller v. Oregon (208 US 412)
- ^ Powers, Stephen, and Rothman, Stanley. The Least Dangerous Branch?: Consequences of Judicial Activism, Smith College, Greenwood Publishing Group (2002)
- ^ Link, Arthur S. Woodrow Wilson and the Progressive Era, 1910–1917, Harper and Row (1954)
- ^ Marc Eric McClure (2003). Earnest Endeavors: The Life and Public Work of George Rublee. Greenwood. p. 76. ISBN 9780313324093. Archived from the original on January 28, 2024. Retrieved October 31, 2016.
- ^ a b Link, Albert S. Wilson: the New Freedom, Princeton University Press (1953)
- ^ Brandeis, Louis D. (December 20, 1913). "What Publicity Can Do" (PDF). Harper's Weekly. Vol. 58, no. 2974. pp. 10–13. Retrieved May 31, 2024.
- ^ Brandeis And The History Of Transparency Archived December 24, 2023, at the Wayback Machine, Sunlight Foundation, May 26, 2009. Retrieved December 23, 2023.
- ^ Brandeis, Louis. Other People's Money – and How the Bankers Use It Archived June 28, 2015, at the Wayback Machine, (1914) complete text from Louis D. Brandeis School of Law
- ^ a b "Brandeis, Louis Dembitz". Washington, D.C.: Federal Judicial Center. Archived from the original on January 27, 2022. Retrieved February 14, 2022.
- ^ New York Times: Brandeis Named for Highest Court," January 29, 1916 Archived March 4, 2016, at the Wayback Machine. Retrieved February 21, 2010.
- ^ a b "A History of Supreme Court Confirmation Hearings". NPR. July 12, 2009. Archived from the original on January 15, 2012. Retrieved January 28, 2024.
- ^ a b Todd, Alden L. Justice on Trial: The Case of Louis D. Brandeis, McGraw-Hill (1964)
- ^ Afran, Bruce, & Garber, Robert A. (2005). Jews on Trial. pp. 157–158.
- ^ Afran, Bruce, & Garber, Robert A. (2005). Jews on Trial. p. 154.
- ^ Erin Coyle, Elisabeth Fondren, and Joby Richard. "Advocacy, Editorial Opinion, and Agenda Building: How Publicity Friends Fought for Louis D. Brandeis’s 1916 Supreme Court Confirmation." American Journalism 37.2 (2020): 165–190.
- ^ Woodrow Wilson (1918). Selected Addresses and Public Papers of Woodrow Wilson. Boni and Liveright, Inc. p. 119.
- ^ "Confirm Brandeis by Vote of 47 to 22," The New York Times, June 2, 1916 Archived March 3, 2016, at the Wayback Machine, accessed December 31, 2009
- ^ McMillion, Barry J. (January 28, 2022). Supreme Court Nominations, 1789 to 2020: Actions by the Senate, the Judiciary Committee, and the President (PDF) (Report). Washington, D.C.: Congressional Research Service. Archived (PDF) from the original on September 3, 2023. Retrieved February 14, 2022.
- ^ a b Dalin, David G. (2016). "The Appointment of Louis D. Brandeis, First Jewish Justice on the Supreme Court" (PDF). bir.brandeis.edu. Brandeis University. Archived from the original (PDF) on April 12, 2019.
- ^ a b Gerber, Edward F.; Burt, Zachary. "A Consequential Friendship: President Wilson and Supreme Court Justice Louis D. Brandeis" (PDF). woodrowwilsonhouse.org. Woodrow Wilson House. Archived (PDF) from the original on December 20, 2022. Retrieved August 26, 2022.
- ^ Bracey, Christopher (January 1, 2001). "Louis Brandeis and the Race Question". GW Law Faculty Publications & Other Works. Archived from the original on January 2, 2022. Retrieved January 2, 2022.
- ^ Richard A. Colignon (1997). Power Plays: Critical Events in the Institutionalization of the Tennessee Valley Authority. SUNY Press. p. 170. ISBN 9780791430118. Archived from the original on August 5, 2020. Retrieved July 19, 2016.
- ^ Bruce Allen Murphy, The Brandeis/Frankfurter Connection: The Secret Activities of Two Supreme Court Justices (Oxford University Press, 1982) p. 343
- ^ The famed jurist Learned Hand "thought it appropriate for a federal judge to offer private advice, as he so frequently did with Theodore Roosevelt, so long as there was no prominent public identification with the cause." See Gerald Gunther (2010). Learned Hand: The Man and the Judge. Oxford University Press. p. 202. ISBN 9780199703432. Archived from the original on August 5, 2020. Retrieved July 19, 2016.
- ^ Preclík, Vratislav. Masaryk a legie (Masaryk and legions), váz. kniha, 219 str., vydalo nakladatelství Paris Karviná, Žižkova 2379 (734 01 Karviná) ve spolupráci s Masarykovým demokratickým hnutím (Masaryk Democratic Movement, Prague), 2019, ISBN 978-80-87173-47-3, pp.124 – 128,140 – 148,184 – 190
- ^ Green, John Raeburn. The Supreme Court, the Bill of Rights, and the States, 97 Univ. of Pennsylvania Law Review, 608, 630 (1949)
- ^ Gilbert v. Minnesota Archived June 6, 2011, at the Wayback Machine, Decided December 13, 1920, full text
- ^ Gormley, Ken, and Richardson, Elliot Archibald Cox: Conscience of a Nation, Da Capo Press, (1999)
- ^ Comstock, Alzada (1921). State Taxation of Personal Incomes. Volume CI, Number 1, or Whole Number 229, of Studies in History, Economics and Public Law edited by the Faculty of Political Science of Columbia University. New York: Columbia University, pgs 18–26.
- ^ Fatale, Michael T. (April 25, 2022). "See, too, a discussion of the case in a State Tax Notes Letter to the Editor from Michale Fatale, General Counsel for the Massachusetts Department of Revenue, Fatale, Michael T., Justice Brandeis and State Taxation (April 25, 2022). State Tax Notes, Volume 104, May 2, 2022". SSRN 4102356. Archived from the original on May 18, 2022. Retrieved May 18, 2022.
- ^ Lewis, Anthony. Make No Law: The Sullivan case and the First Amendment, Random House, (1991)
- ^ "Right to Privacy". Archived from the original on May 19, 2013. Retrieved July 9, 2013.
- ^ Olmstead v. United States Archived March 11, 2009, at the Wayback Machine, 277 U.S. 438 (1928), complete text including dissent
- ^ Freund, Paul A. (Winter 1959). "Mr. Justice Frankfurter". The University of Chicago Law Review. 26 (2): 209–210. Archived from the original on April 23, 2021. Retrieved February 1, 2021.
A decision may turn on whether one gives that amendment a place second to none in the Bill of Rights, or considers it on the whole a kind of a nuisance, a serious impediment in the war against crime. [from Harris dissent]
- ^ Finkelman, Paul. Encyclopedia of American Civil Liberties, CRC Press, (2006)
- ^ Griswold v. Connecticut, 381 U.S. 479 (1965)
- ^ Roe v. Wade, 410 U.S. 113 (1973)
- ^ Starger, Colin (2013). "The Dialectic of Stare Decisis Doctrine". In Peters, Christopher J. (ed.). Precedent in the United States Supreme Court. Dordrecht: Springer Science+Business Media. pp. 19–46. ISBN 978-94-007-7950-1. Archived from the original on March 8, 2021. Retrieved May 25, 2020. Available via SpringerLink.
- ^ Starger, Colin (2013). "The Dialectic of Stare Decisis Doctrine". In Peters, Christopher J. (ed.). Precedent in the United States Supreme Court. Dordrecht: Springer Science+Business Media. pp. 19–46. ISBN 978-94-007-7950-1. Archived from the original on March 8, 2021. Retrieved May 25, 2020. Available via SpringerLink.
- ^ Starger, Colin (2013). "The Dialectic of Stare Decisis Doctrine". In Peters, Christopher J. (ed.). Precedent in the United States Supreme Court. Dordrecht: Springer Science+Business Media. pp. 19–46. ISBN 978-94-007-7950-1. Archived from the original on March 8, 2021. Retrieved May 26, 2020. Available via SpringerLink.
- ^ Gordon, John Steele. "The Economic Contradictions of Obama-ism" Archived November 5, 2013, at the Wayback Machine, Commentary magazine, April 2009, pgs. 23–26
- ^ Harry Hopkins, "Statement to Me by Thomas Corcoran Giving His Recollections of the Genesis of the Supreme Court Fight," April 3, 1939, typescript in Harry Hopkins Papers
- ^ Dawson, Nelson L. ed., Brandeis and America, Univ. Press of Kentucky (1989)
- ^ Roos, Dave (September 21, 2020). "The Sedition and Espionage Acts Were Designed to Quash Dissent During WWI". HISTORY. Archived from the original on January 2, 2022. Retrieved January 2, 2022.
- ^ "Free speech wasn't so free 103 years ago, when 'seditious' and 'unpatriotic' speech was criminalized in the US". University of South Carolina. Archived from the original on January 2, 2022. Retrieved January 2, 2022.
- ^ Walter Laqueur, A History of Zionism, p.159; Peter Grose, Israel in the Mind of America, p. 48
- ^ Michael Brown, The Israeli-American Connection: Its Roots in the Yishuv, 1914–1945 Archived August 5, 2020, at the Wayback Machine, (1996), p. 26 "In early 1914 the USS North Carolina arrived in Jaffa harbor with money and supplies provided by Schiff, the American Jewish Committee, and the Provisional Executive Committee for General Zionist Affairs, then acting for the WZO, which had been rendered impotent by the war."
- ^ a b c "Patriot, Judge, and Zionist". Archived from the original on October 27, 2007. Retrieved October 27, 2007.
- ^ a b c Brandeis, Louis. "The Jewish Problem: How To Solve It" Archived May 17, 2009, at the Wayback Machine, Speech given at a Conference of Eastern Council of Reform Rabbis, April 25, 1915
- ^ Religion: Zionist Chiefs, Time, July 28, 1930
- ^ Urofsky (2009)
- ^ "Christensen, George A. (1983) Here Lies the Supreme Court: Gravesites of the Justices, Yearbook". Archived from the original on September 3, 2005. Retrieved November 24, 2013. Supreme Court Historical Society at Internet Archive.
- ^ Christensen, George A., Here Lies the Supreme Court: Revisited, Journal of Supreme Court History, Volume 33 Issue 1, Pages 17–41 (2008).
- ^ "The Louis D. Brandeis Collection". University of Louisville. Archived from the original on April 10, 2024. Retrieved April 10, 2024.
- ^ Kelly, Alfred H. (1996). "Brandeis, Louis Dembitz". In Garraty, John A.; Sternstein, Jerome L. (eds.). Encyclopedia of American Biography (2nd ed.). New York: HarperCollins. pp. 130-132. ISBN 978-0062700179.
- ^ The Economist, September 24, 2009 ("Books and Arts" section)
- ^ Harper, John Lamberton. American Visions of Europe Cambridge Univ. Press (1996)
- ^ "Mass DOR website". Archived from the original on May 19, 2022. Retrieved May 18, 2022.
- ^ "BC Law School biography". Archived from the original on March 13, 2022. Retrieved May 18, 2022.
- ^ "BU School of law biography". Archived from the original on September 29, 2023. Retrieved May 18, 2022.
- ^ Fatale, Michael T. (April 25, 2022). "Fatale, Michael T., Justice Brandeis and State Taxation (April 25, 2022). State Tax Notes, Volume 104, May 2, 2022". SSRN 4102356. Archived from the original on January 28, 2024. Retrieved May 18, 2022.
- ^ "Brandeis' Stamp Of Approval Recognized". Archived from the original on March 22, 2012. Retrieved October 22, 2009.
{{cite web}}
: CS1 maint: bot: original URL status unknown (link), WLKY.com, October 21, 2009 - ^ "U.S. Postal Service Press Release". Archived from the original on January 13, 2011. Retrieved August 12, 2009., new Brandeis commemorative stamp announced, December 2008
- ^ Brink, Robert J. (1987). Fiat Justitia: A History of the Massachusetts Bar Association. 1910–1985. Boston: Massachusetts Bar Association. pp. Forward. ISBN 0-944394-00-0.
- ^ "Brandeis University Law Journal". brandeis.edu. Archived from the original on November 15, 2021. Retrieved July 7, 2021.
- ^ "Louis D. Brandeis High School in New York City". insideschools.org. Archived from the original on July 9, 2021. Retrieved July 7, 2021.
References
Selected works by Brandeis
- The Living Law, Illinois Law Review, February 16, 1916
- The Brandeis Guide to the Modern World. Alfred Lief, Ed. (Boston: Little, Brown & Co., 1941)
- Brandeis on Zionism. Solomon Goldman, Ed. (Washington, D.C.: Zionist Organization of America, 1942)
- Business, a Profession. Ernest Poole, Foreword (Boston: Small, Maynard & Co. Pubs., 1914)
- The Curse of Bigness. Miscellaneous Papers of Louis Brandeis. Osmond K. Fraenkel, Ed. (New York: The Viking Press, 1934)
- The Words of Justice Brandeis. Solomon Goldman, Ed. (New York: Henry Schuman, 1953)
- Other People's Money and How the Bankers Use It (New York: Stokes, 1914)
- Melvin I. Urofsky, David W. Levy, Eds. Half Brother, Half Son: The Letters of Louis D. Brandeis to Felix Frankfurter (Norman: University of Oklahoma Press, 1991)
- Melvin I. Urofsky, Ed. Letters of Louis D. Brandeis (Albany: State University of New York Press, 1980)
- Melvin I. Urofsky, David W. Levy, Eds. Letters of Louis D. Brandeis (Albany: State University of New York Press, 1971–1978, 5 vols.)
- Melvin I. Urofsky, David W. Levy, Eds. The Family Letters of Louis D. Brandeis (Norman: University of Oklahoma Press, 2002)
- Louis Brandeis, Samuel Warren "The Right to Privacy," at the Wayback Machine (archived March 1, 2009) 4 Harvard Law Review 193–220 (1890–91)
- Alexander M. Bickel. The Unpublished Opinions of Mr. Justice Brandeis (Cambridge: Harvard University Press, 1957)
- Philippa Strum, ed. Brandeis on Democracy (Lawrence: University Press of Kansas, 1995)
Books about Brandeis
- Leonard Baker. Brandeis and Frankfurter: A Dual Biography (New York: Harper & Row, 1984) online
- Gerald Berk. Louis Brandeis and the Making of Regulated Competition, 1900–1932 (Cambridge: Cambridge University Press, 2009)
- Robert A. Burt. Two Jewish Justices: Outcasts in the Promised Land (Berkeley: University of California Press, 1988)
- Nelson L. Dawson, ed. Brandeis and America (Lexington: University Press of Kentucky, 1989)
- Jacob DeHaas. Louis D. Brandeis: A Biographical Sketch (New York: Bloch Publishing, 1929)
- Felix Frankfurter, ed. Mr. Justice Brandeis (New Haven: Yale University Press, 1932)
- Ben Halpern. A Clash of Heroes: Brandeis, Weizman, and American Zionism (New York: Oxford University Press, 1986)
- Samuel J. Konefsky. The Legacy of Holmes and Brandeis: A Study in the Influence of Ideas (New York: Macmillan & Co., 1956)
- Alfred Lief, ed. The Social and Economic Views of Mr. Justice Brandeis (New York: The Vanguard Press, 1930)
- Jacob Rader Marcus. Louis Brandeis (Twayne Publishing, 1997)
- Alpheus Thomas Mason. Brandeis: A Free Man's Life (New York: The Viking Press, 1946) online
- Alpheus Thomas Mason. Brandeis and The Modern State (Princeton: Princeton University Press, 1936) online
- Thomas McCraw. Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn (Cambridge: Harvard University Press, 1984)
- Ray M. Mersky. Louis Dembitz Brandeis 1856–1941: Bibliography (Fred B Rothman & Co; reprint ed., 1958)
- Bruce Allen Murphy, The Brandeis/Frankfurter Connection: The Secret Activities of Two Supreme Court Justices (New York: Oxford University Press, 1982)
- Lewis J. Paper. Brandeis: An Intimate Biography of One of America's Truly Great Supreme Court Justices (Englewood Cliffs: Prentice-Hall, 1983)
- Edward A. Purcell Jr. Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America (New Haven: Yale University Press, 2000)
- Jeffrey Rosen. Louis D. Brandeis: American Prophet (New Haven: Yale University Press, 2016)
- Philippa Strum. Brandeis: Beyond Progressivism (Lawrence: University Press of Kansas, 1993)
- Philippa Strum. Louis D. Brandeis: Justice for the People (Cambridge: Harvard University Press, 1988) online
- A.L. Todd. Justice on Trial: The Case of Louis D. Brandeis (New York: McGraw-Hill, 1964)
- Melvin I. Urofsky. A Mind of One Piece: Brandeis and American Reform (New York, Scribner, 1971)
- Melvin I. Urofsky. Louis D. Brandeis, American Zionist (Jewish Historical Society of Greater Washington, 1992) (monograph)
- Melvin I. Urofsky. Louis D. Brandeis and the Progressive Tradition (Boston: Little, Brown & Co., 1981) online
- Melvin I. Urofsky. Louis D. Brandeis: A Life (New York: Pantheon, 2009) review Archived August 16, 2018, at the Wayback Machine
- Nancy Woloch. Muller v. Oregon: A Brief History with Documents (Boston: Bedford Books, 1996)
Select articles
- Bhagwat, Ashutosh A. (2004). "The Story of Whitney v. California: The Power of Ideas". In Dorf, Michael C. (ed.). Constitutional Law Stories. New York: Foundation Press. pp. 418–520. ISBN 1-58778-505-6.
- Bernstein, David (2014). "From Progressivism to Modern Liberalism: Louis D. Brandeis as a Transitional Figure in Constitutional Law". Notre Dame. 89: 2029. SSRN 2447775.
- Blasi, Vincent (1988). "The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney v. California". William & Mary Law Review. 29: 653.
- Bobertz, Bradley C. (1999). "The Brandeis Gambit: The Making of America's 'First Freedom,' 1909–1931". William & Mary Law Review. 40: 557.
- Brandes, Evan B. (2005). "Legal Theory and Property Jurisprudence of Oliver Wendell Holmes, Jr. and Louis D. Brandeis: An Analysis of Pennsylvania Coal Company v. Mahon". Creighton Law Review. 38: 1179.
- Collins, Ronald K.L.; Skover, David (2005). "Curious Concurrence: Justice Brandeis's Vote in Whitney v. California". Supreme Court Review. 2005: 1–52. doi:10.1086/655189. S2CID 142801765.
- Collins, Ronald; Friesen, Jennifer (1983). "Looking Back on Muller v. Oregon". American Bar Association Journal. 69: 294–298, 472–477.
- Coyle, Erin, Elisabeth Fondren, and Joby Richard. "Advocacy, Editorial Opinion, and Agenda Building: How Publicity Friends Fought for Louis D. Brandeis’s 1916 Supreme Court Confirmation." American Journalism 37.2 (2020): 165–190.
- Erickson, Nancy (1989). "Muller v. Oregon Reconsidered: The Origins of a Sex-Based Doctrine of Liberty of Contract". Labor History. 30 (2): 228–250. doi:10.1080/00236568900890161.
- Farber, Daniel A. (1995). "Reinventing Brandeis: Legal Pragmatism For the 21st Century". U. Ill. L. Rev. 1995: 163.
- Frankfurter, Felix (1916). "Hours of Labor and Realism in Constitutional Law". Harvard Law Review. 29 (4): 353–373. doi:10.2307/1326686. JSTOR 1326686.
- Freund, Paul A. (1957). "Mr. Justice Brandeis: A Centennial Memoir". Harvard Law Review. 70: 769.
- Spillenger, Clyde (1996). "Elusive Advocate: Reconsidering Brandeis as People's Lawyer". Yale Law Journal. 105 (6): 1445–1535. doi:10.2307/797295. JSTOR 797295. Archived from the original on April 27, 2019. Retrieved September 5, 2019.
- Spillenger, Clyde (1992). "Reading the Judicial Canon: Alexander Bickel and the Book of Brandeis". Journal of American History. 79 (1): 125–151. doi:10.2307/2078470. JSTOR 2078470.
- Urofsky, Melvin I. (2005). "Louis D. Brandeis: Advocate Before and On the Bench". Journal of Supreme Court History. 30: 31. doi:10.1111/j.1059-4329.2005.00096.x. S2CID 145579255.
- Urofsky, Melvin I. (1985). "State Courts and Protective Legislation during the Progressive Era: A Reevaluation". Journal of American History. 72 (1): 63–91. doi:10.2307/1903737. JSTOR 1903737.
- Urofsky, Melvin I. "Wilson, Brandeis, and the Supreme Court Nomination." Journal of Supreme Court History 28.2 (2003): 145–156.
- Vose, Clement E. (1957). "The National Consumers' League and the Brandeis Brief". Midwest Journal of Political Science. 1 (3/4): 267–290. doi:10.2307/2109304. JSTOR 2109304.
Shorter mention
- Goldstein, Joel K. "The art of judicial selection: Lessons for Obama from Brandeis and Freund", The St. Louis Beacon, May 19, 2009
- Dash, Eric "If It's Too Big to Fail, Is It Too Big to Exist?" Archived August 15, 2018, at the Wayback Machine, The New York Times, June 20, 2009
- Mirsky, Yehudah ""Zionism, Ethics and the New Birth of Freedom: Louis Brandeis, Then and Now", Jewcy/Zeek, August 18, 2009
- Nold Jr., James, Louisville Magazine, March 2010.
- Schwarz, Jordan A. The New Dealers: Power politics in the age of Roosevelt (Vintage, 2011) pp 109–122. online
Further reading
- Abraham, Henry J. (1992). Justices and Presidents: A Political History of Appointments to the Supreme Court (3rd ed.). New York: Oxford University Press. ISBN 0-19-506557-3.
- Bosmajian, Haig (2010). Anita Whitney, Louis Brandeis, and the First Amendment. Cranbury, NJ: Farleigh Dickinson University Press. ISBN 9780838642672.
- Cushman, Clare (2001). The Supreme Court Justices: Illustrated Biographies, 1789–1995 (2nd ed.). (Supreme Court Historical Society, Congressional Quarterly Books). ISBN 1-56802-126-7.
- Frank, John P. (1995). Friedman, Leon; Israel, Fred L. (eds.). The Justices of the United States Supreme Court: Their Lives and Major Opinions. Chelsea House Publishers. ISBN 0-7910-1377-4.
- Hall, Kermit L., ed. (1992). The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press. ISBN 0-19-505835-6.
Homans, James E., ed. (1918). . The Cyclopædia of American Biography. New York: The Press Association Compilers, Inc.
- Martin, Fenton S.; Goehlert, Robert U. (1990). The U.S. Supreme Court: A Bibliography. Washington, D.C.: Congressional Quarterly Books. ISBN 0-87187-554-3.
- Urofsky, Melvin I. (1994). The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing. p. 590. ISBN 0-8153-1176-1.
External links
- Melvin I. Urofsky discusses 'Louis D. Brandeis: A Life' Video, 40 minutes, September 29, 2009
- C-SPAN Q&A interview with Melvin Urofsky about Louis D. Brandeis: A Life, November 8, 2009
- Revisiting the Tenure of Supreme Court Justice Louis Brandeis, the 'Jewish Jefferson' (NPR's "Fresh Air" 2016)
- Fox, John, Capitalism and Conflict, Biographies of the Robes, Louis Dembitz Brandeis. Public Broadcasting Service.
- Louis Dembitz Brandeis at the Biographical Directory of Federal Judges, a publication of the Federal Judicial Center.
- Nomination of Louis D. Brandeis: hearings before the subcommittee of the committee on the Judiciary of the Senate February 9, 1916 ..., Volumes 1–21, 1219 pages at book dot Google.
- Harvard University Library Open Collections Program. Women Working, 1870–1930, Louis Brandeis (1846–1941). at the Wayback Machine (archived May 5, 2008) 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
- Louis Dembitz Brandeis Collection at Brandeis University
- Works by Louis Brandeis at Project Gutenberg
- Works by or about Louis Brandeis at the Internet Archive
- Works by Louis Brandeis at LibriVox (public domain audiobooks)
- Louis Brandeis at Find a Grave