THC Science

Louis Dembitz Brandeis (November 13, 1856 – October 3, 1941) was an important American litigator, Supreme Court Justice, advocate of privacy, and developer of the Brandeis Brief. In addition, he helped lead the American Zionist movement.

Justice Brandeis was appointed by Woodrow Wilson to the Supreme Court of the United States in 1916 (sworn-in on June 5), and served until 1939. Many were surprised that Wilson -- son of a Christian minister -- would appoint to the highest court in the land the very first Jew to hold that office.

But Brandeis had superb qualifications. Besides his brilliant educational record, Brandeis had for some years been a vital contributor to the progressive wing of the United States Democratic Party, and had published a noted book in support of competition rather than monopoly in business. And President Wilson, who believed deeply that government must be a moral force for good, responded to similar sentiments in the thought and writings of Brandeis.

Early life

Brandeis was born in Louisville, Kentucky. His family immigrated to the United States from Prague following the failed revolution of 1848, settling in Louisville. Brandeis graduated from high school at age 14 with the highest honors.

In 1872, Brandeis went to Europe, first to travel with his family, and then for two years of school at Dresden. Returning in 1875, Brandeis entered Harvard, graduating from its law school in 1877 not only at the head of his class but with the highest marks of any student to have attended Harvard Law School.

Brandeis became an attorney in Boston, achieving financial success and taking an active role in progressive causes.

The Brandeis Brief

In the 1908 case Muller v. Oregon, Brandeis, acting as a litigator, collected empirical data from hundreds of sources. In what became known as the "Brandeis Brief", the report provided social authorities with information on the issue of the impact of long working hours on women. This was the first instance in the United States that social science had been used in law and changed the direction of the Supreme Court and of U.S. law. The Brandeis Brief became the model for future Supreme Court presentations.

Brandeis was always a staunch critic of big business, which he considered inefficient and dangerous to American values. As a liberal Supreme Court justice in the New Deal era, Brandeis and a band of prominent admirers, including Felix Frankfurter, argued that central planning was inimical to American values and interests.

But many New Deal liberals disagreed. They favored central planning and wanted Washington to dictate to a few large corporations rather than thousands of small ones. Brain Truster Raymond Moley, for example, ridiculed the Brandeisian notion that "America could once more become a nation of small proprietors, of corner grocers and smithies under spreading chestnut trees." In the end, the Brandeis view lost ground and central planners played major roles in the New Deal.

Supreme Court Justice

Overcoming significant opposition to his appointment (notably from ex-President and future Chief Justice William Howard Taft), Brandeis became one of the most influential and respected Supreme Court Justices in United States history. His votes and opinions envisioned the greater protections for individual rights and greater flexibility for government in economic regulation that would prevail in later courts.

In his widely-cited dissenting opinion in Olmstead v. United States (1928), Brandeis argued, as he had in an influential law review article prior to being nominated to the Court that the Constitution protected a "right of privacy," calling it "the most comprehensive of rights and the right most valued by civilized men." Brandeis' position in Olmstead became the law of the land in 1967's Katz v. United States, which overturned Olmstead.

Brandeis also joined with fellow justice Oliver Wendell Holmes, Jr. in calling for greater Constitutional protection for speech, disagreeing with the Court's analysis in upholding a conviction for aiding the Communist Party in Whitney v. California (1927) (though concurring with the disposition of the case on technical grounds). Brandeis's opinion foreshadows the greater speech protections enforced by the Earl Warren Court.

Brandeis also opposed the Supreme Court's doctrine of "liberty of contract," which often acted to shield business from government regulation on the right of employers and employees to freely contract with each other, and argued that the Court should adopt a broader view of what constituted "commerce" which could be regulated by Congress, foreshadowing decisions such as 1941's United States v. Darby.

In New State Ice Co. v. Leibmann (1932), Brandeis in dissent famously urged that the states should be able to be "laboratories" for innovative government action, in the face of the Supreme Court's frequent invalidation of state measures regulating business. Brandeis's views on "liberty of contract" would prevail in the long run, culminating in the seminal Supreme Court case of West Coast Hotel v. Parrish (1937). He was urging deference to legislative judgments when fundamental individual liberties are not seriously threatened and showing a healthy respect for the vertical (federal vs. states vs. individual) and horizontal (judicial vs. legislative) separations of power.

As an octogenarian, Brandeis was deeply offended by his friend Franklin Roosevelt's court-packing scheme of 1937, with its implication that elderly justices needed special help to carry out their duties. Brandeis retired from the Court in 1939, to be replaced by William O. Douglas.

Zionist leader

Brandeis also became the most prominent American Zionist. Zionism was the movement to establish a Jewish homeland in Palestine. Not raised religious, Brandeis became involved in Zionism through a 1912 conversation with Jacob de Haas, editor of a Boston Jewish weekly and a follower of Theodore Herzl. Brandeis became active in the Federation of American Zionists as a result. With the outbreak of World War I, the Zionist movement's headquarters in Berlin became ineffectual, and American Jewry had to assume larger responsibility for the Zionist movement. When the Provisional Executive Committee for Zionist Affairs was established in New York, Brandeis accepted unanimous election to be its head. In this position from 1914 to 1918, Brandeis was the leader of American Zionism. Brandeis embarked on a speaking tour in the fall and winter of 1914-1915 to support the Zionist cause. Brandeis emphasized the goal of self-determination and freedom for Jews through the development of a Jewish homeland in Palestine and the compatibility of Zionism and American patriotism.

Brandeis brought his influence in the Woodrow Wilson administration to bear in the negotiations leading up to the Balfour Declaration. Brandeis split with the European branch of Zionism, led by Chaim Weizmann, and resigned a leadership role in 1921. He retained membership, however, and remained active in Zionism until the end of his life.

Brandeis died in 1941. After the passing of the renowned jurist, a court officer was clearing out his chambers, and a large bust of Jacob Frank was found amongst his most treasured possessions.

The cremated remains of Justice Brandeis are interred under the portico of the Louis Brandeis Law school at the University of Louisville.

Brandeis University, in Waltham, Massachusetts, was named after Louis Brandeis, as was the Brandeis Award. The University of Louisville features the Louis D. Brandeis School of Law, also named after him. A New York City high school was also named in his honor. The remains of both Justice Brandeis and his wife are interred beneath the Louis D. Brandeis School of Law at the University of Louisville. His personal and professional papers are archived at the library there.

References

Selected works by Brandeis

The Brandeis Guide to the Modern World, Alfred Lief, editor (Boston: Little Brown & Co., 1941)
Brandeis on Zionism, Solomon Goldman, editor (Washington, D.C.: Zionist Organization of America, 1942)
Business, a Profession, Ernest Poole, editor (Boston, MA: Small, Maynard, 1914)
The Curse of Bigness, Osmond K. Fraenkel, editor (New York, NY: Viking Press, 1934)
The Words of Justice Brandeis, Solomon Goldman, editor (New York, N.Y.: Henry Schuman, 1953)
Others People's Money and How to Use It (New York, NY: Stokes, 1914)
Melvin I. Urofsky & David W. Levy, editors, Half Brother, Half Son: The Letters of Louis D. Brandeis to Felix Frankfurter (University of Oklahoma Press, 1991)
Melvin I. Urofsky, editor, Letters of Louis D. Brandeis (State University of New York Press, 1980)
Melvin I. Urofsky & David W. Levy, editors, Letters of Louis D. Brandeis (State University of New York Press, 1971-1978, 5 vols.)
Louis Brandeis & Samuel Warren," The Right to Privacy," 4 Harvard Law Review 193-220 (1890-91)
"The Living Law," 10 Illinois Law Review 461 (1916)

Books about Brandeis

Leonard Baker, Brandeis & Frankfurter: A Dual Biography (New York, N.Y.: Harper & Row, 1984)
Alexander M. Bickel, The Unpublished Opinions of Mr. Justice Brandeis (Cambridge, MA: Harvard University Press, 1957)
Robert A. Burt, Two Jewish Justices: Outcasts in the Promised Land (Berkeley, CA: University of California Press, 1988)
Nelson L. Dawson, editor, Brandeis and America (Lexington, KY: University Press of Kentucky, 1989)
Jacob DeHaas, Louis D. Brandeis, A Biographical Sketch (Blach, 1929)
Felix Frankfurter, editor, Mr. Justice Brandeis (New Haven, CT: Yale University Press, 1932)
Ben Halpern, A Clash of Heroes: Brandeis, Weizman, and American Zionism (New York, N. Y.: Oxford University Press, 1986)
Samuel J. Konefsky, The Legacy of Holmes & Brandeis: A Study in the Influence of Ideas (New York, N.Y.: Macmillan Co., 1956)
David W. Levy, editor, The Family Letters of Louis D. Brandeis (University of Oklahoma Press, 2002)
Alfred Lief, Brandeis: The Personal History of an American Ideal (New York, N.Y.: Stackpole Sons, 1936)
Alfred Lief, editor, The Social & Economic Views of Mr. Justice Brandeis (New York, N.Y.: The Vanguard Press, 1930)
Jacob Rader Marcus, Louis Brandeis (Twayne Publishing, 1997)
Alpheus Thomas Mason, Brandeis: A Free Man's Life (New York, N.Y.: The Viking Press, 1946)
Alpheus Thomas Mason, Brandeis & The Modern State (Princeton, N.J.: Princeton University Press, 1933)
Thomas McGraw, Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn (Cambridge, MA: 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, N.Y.: Oxford University Press, 1982)
Lewis J. Paper, Brandeis: An Intimate Biography of one of America's Truly Great Supreme Court Justices (Englewood Cliffs, N.J.: Pretice-Hall, Inc., 1983)
Catherine Owens Peare, The Louis D. Brandeis Story (Ty Crowell Co., 1970)
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)
Philippa Strum, Brandeis: Beyond Progressivism (Lawrence, KS: University Press of Kansas, 1993)
Philippa Strum, editor, Brandeis on Democracy (Lawrence, KS: University Press of Kansas, 1995)
Philippa Strum, Louis D. Brandeis: Justice for the People (Cambridge, Mass.: Harvard University Press, 1988)
A.L. Todd, Justice on Trial: The Case of Louis D. Brandeis (New York, N.Y: McGraw-Hill, 1964)
Melvin I. Urofsky, A Mind of One Piece: Brandeis and American Reform (New York, N.Y., Scribner, 1971)
Melvin I. Urofsky, Louis D. Brandeis, American Zionist (Jewish Historical Society of Greater Washington, 1992) (monograph)
Melvin I. Urofsky, Louis D. Brandeis & the Progressive Tradition (Boston, MA: Little Brown & Co., 1981)
Nancy Woloch, Muller v. Oregon: A Brief History with Documents (Boston, MA: Bedford Books, 1996)

Select articles

Ashutosh A. Bhagwat, "The Story of Whitney v. California: The Power of Ideas," in Michael C. Dorf, ed., Constitutional Law Stories 418-520 (Foundation Press, 2004)
Vincent Blasi, "The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney v. California," 29 William & Mary Law Review 653 (1988)
Bradley C. Bobertz, "The Brandeis Gambit: The Making of America’s 'First Freedom,' 1909-1931," 40 William & Mary Law Review 557 (1999)
Ronald Collins & David Skover, “Curious Concurrence: Justice Brandeis’s Vote in Whitney v. California,” 2005 Supreme Court Review 1-52
Ronald Collins & Jennifer Friesen, "Looking Back on Muller v. Oregon," 69 American Bar Association Journal 294-298, 472-477 (March & April, 1983)
Nancy Erickson, "Muller v. Oregon Reconsidered: The Origins of a Sex-Based Doctrine of Liberty of Contract," 30 Labor History 228-250 (1989)
Felix Frankfurter, "Hours of Labor & Realism in Constitutional Law," 29 Harvard Law Review 353 (1916)
Clyde Spillenger, "Elusive Advocate: Reconsidering Brandeis as People’s Lawyer," 105 Yale Law Journal 1445 (1996)
Clyde Spillenger, "Reading the Judicial Canon: Alexander Bickel and the Book of Brandeis," 79 Journal of American History 125 (1992)
Melvin Urofsky, "Louis D. Brandeis: Advocate Before and On the Bench," 30 Journal of Supreme Court History 31 (March, 2005)
Melvin Urofsky, "State Courts & Protective Legislation during the Progressive Era: A Reevaluation," 72 Journal of American History 63-91 (1985)
Clement E. Vose, "The National Consumers' League and the Brandeis Brief," 1 Midwest Journal of Political Science 267-290 (1957)

Selected Opinions

Selected Quotations

"Men feared witches and burnt women."

"The most important political office is that of the private citizen."

"It is the function of speech to free men from the 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."

"We can have a democratic society or we can have great concentrated wealth in the hands of a few. We cannot have both."

"Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government."

-- Whitney v. California (1927) (concurring)

"Full and free exercise of this right by the citizen is ordinarily also his duty; for its exercise is more important to the nation than it is to himself. Like the course of the heavenly bodies, harmony in national life is a resultant of the struggle between contending forces. In frank expression of conflicting opinion lies the greatest promise of wisdom in governmental action; and in suppression lies ordinarily the greatest peril."

-- Gilbert v. Minnesota (1920) (dissenting)

"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 a 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, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men."

"Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."

--Olmstead v. United States (1928) (dissenting)

"There are many men now living who were in the habit of using the age-old expression: 'It is as impossible as flying.' The discoveries in physical science, the triumphs in invention, attest the value of the process of trial and error. In large measure, these advances have been due to experimentation."

-- New State Ice Co. v. Liebmann (1932) (dissenting)

External links

Harvard University Library Open Collections Program. Women Working, 1870-1930, Louis Brandeis (1846-1941). A full-text searchable online database with complete access to publications written by Louis Brandeis.

Preceded by Joseph Rucker Lamar	Associate Justice of the Supreme Court of the United States June 5, 1916–February 13, 1939	Succeeded by William O. Douglas