Louis Dembitz Brandeis (November 13, 1856 - October 3, 1941) was an important American litigator, Justice, advocate of privacy, and developer of the Brandeis Brief. In addition, he helped lead the American Zionist movement. He was appointed by Woodrow Wilson to the Supreme Court of the United States in 1916 (sworn-in on June 5), and served until 1939. He was the first Jew to hold that office. Before his appointment to the Supreme Court, he was associated with the progressive wing of the United States Democratic Party, and published a notable book in support of competition rather than monopoly in business.

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' family were Frankists. That is, they believed would be eighteenth century prophet, Jacob Frank was the messiah of the Jewish people. The Frankists were said to practise ritual orgies. 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. It is said that during this period Brandeis became familiar with his Frankist background. Returning in 1875, Brandeis entered Harvard, graduating from its law school in 1877 at the head of his class. 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.

Supreme Court Justice

Overcoming significant opposition to his appointment, 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. Additionally, Brandeis joined with fellow justice Oliver Wendell Holmes, Jr. in calling for greater Constitutional protection for speech, disagreeing with the Court's analysis in upholding of 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 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, forshadowing 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). However, some people believe that the views on competition that Brandeis articulated in New State Ice, that the state must regulate competition because competition inevitably leads to monopoly, would today be rejected by mainstream economists and policymakers, and would likely be considered socialism. Others feel that his statements on this case don't favor any particular economic system; rather, they describe a proper structural relationship between the courts, the legislatures and the Constitution. He was urging deference to legislative judgments when fundamental individual liberties are not seriously threatened. He was 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.

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

--Select 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 Peoples Money and How to Use It (New York, NY: Stokes, 1914)

• 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, CN: Yale University Press, 1932)

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, editor, Letters of Louis D. Brandeis (State University of New York Press, 1980)

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)

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 & David W. Levy, editors, Letters of Louis D. Brandeis (State University of New York Press, 1972-1975, 4 vols.)

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)

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)

Select Opinions

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

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.

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