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A Hero of American Justice

Louis Brandeis, Washington, D.C., 1930s

I met Justice Brandeis once, when I was about thirteen years old. His grandson was in my class at school, and I was invited to stay with his family at their summer house in Chatham, on Cape Cod. One day my classmate’s mother said, “We are going to visit the justice,” and we all went to Brandeis’s house nearby. He was sitting alone in a chair on the lawn, a formidable figure with a shock of white hair and blazing, deep-set eyes.

That was long ago, but I have never forgotten the image. Brandeis died sixty-eight years ago. His struggles against government corruption and financial concentration, which made him famous before he went on the bench, are lost to history. But his faith in a free, informed public remains a beacon of democracy.

We see him now as a great mind, perhaps the most brilliant of all Supreme Court justices; as a crusader against oversized institutions; and as a luminously eloquent exponent of free speech and privacy—“the right to be let alone.” But he was much more complicated: more conflicted, more interesting. At the beginning of his biography, Melvin Urofsky poses these questions:

How could the man who waxed eloquent on the limits of any one person to direct large operations …micromanage the American Zionist movement for several years? How could someone who felt so passionately about so many things appear to so many people as cold, austere, and indifferent? How often did his moral absolutism shade over into self-righteousness and intolerance of opposition? How does one square some of his extrajudicial activities with his own professed views on the limits of judicial office?

Urofsky, a professor emeritus of history at Virginia Commonwealth University, does not give final answers to those questions. Nobody could. But he explores the main themes and contradictions of Brandeis’s life and gives us a book that is utterly fascinating.

The Jewish question, for example. Brandeis was famously the target of anti-Semitism, but he lived an essentially non-Jewish life. He often had a pork chop for breakfast. From his birth in 1856 until 1914, Urofsky says, Brandeis never set foot in a synagogue. Then, on August 30, 1914, he was invited to a meeting in New York where the straggling leaders of the Zionist movement in America considered what could be done for Zionists suffering on both sides of the war in Europe. Brandeis listened—and took over the meeting and the movement.

He envisioned a future Jewish Palestine as a secular society that lived according to Jeffersonian values, with small farms and enterprises. One wonders what he would make of what Israel has become: a powerful, militarized state that, out of nationalism or necessity (depending on one’s view), suppresses and seizes the land of the Palestinians—whom neither Brandeis nor other early Zionists took into account.

Brandeis was a close friend of his law partner, Samuel Warren, coauthor of the seminal 1890 article in the Harvard Law Review “The Right to Privacy.” When Warren married the daughter of a Delaware senator, Mabel Bayard, who was strongly anti-Semitic, Brandeis was not invited to the wedding. In his letters he left no evidence, Urofsky says, then or later, of how he felt about being the target of such prejudice.

When President Wilson nominated him to the Supreme Court in 1916, eminent figures in what might later be called the Protestant establishment denounced him in terms that reek of anti-Semitism, although Brandeis’s religion was not actually mentioned by most of the critics. William Howard Taft, former president and future chief justice of the United States, wrote:

He is a muckraker, an emotionalist for his own purposes, a socialist, prompted by jealousy, a hypocrite, a man who has certain high ideals in his imagination, but who is utterly unscrupulous, in method in reaching them, a man of infinite cunning…of great tenacity of purpose, and, in my judgment, of much power for evil.

A. Lawrence Lowell, the president of Harvard (who later worked to restrict the number of Jewish students there), circulated a petition against Brandeis that was signed by a number of Boston Brahmins. Seven former presidents of the American Bar Association signed a letter that declared him unfit to serve on the Court. But Charles William Eliot, the great former president of Harvard, wrote to the Senate Judiciary Committee that he had known Brandeis for forty years, since his student days at Harvard Law School, and that Brandeis exhibited “a keen intelligence, quick and generous sympathies…and a character in which gentleness, courage, and joy in combat were intimately blended.”

Taft’s calling Brandeis “a socialist” is a clue to the fact that something more than his Jewishness underlay the hatred expressed. He was in fact the opposite of a socialist; he believed in small government as well as small business. But as a private lawyer he had challenged some of the pillars of capitalism, like the New Haven Railroad, for dubious practices; and they deeply resented it. He had also in Senate hearings attacked Taft’s honesty as president on a conservation issue.

His career in the private practice of law was unlike any other, to my knowledge, before or since. The small firm he founded with Sam Warren was immensely successful, and Brandeis became rich. But he and his wife, Alice Goldmark, lived modest, even spartan lives. (Judge Julian Mack, a good friend, joked that when you went to dinner at the Brandeises, you had to go on to a real dinner.) But Brandeis was extremely generous in gifts to charity and to family and friends; in his lifetime he gave away nearly $1.5 million, something like $30 million in current dollars.

As his practice developed, Brandeis increasingly declined to take fees and instead acted as what he called a lawyer to the situation, investigating and advising according to what he found to be the public good. Businesses that asked him to represent them found themselves in vigorous arguments over his refusal to accept their money. He also decided that he must compensate his firm for the time he took in unpaid work, and he paid the firm many thousands of dollars.

A leading journalist of the time, Ray Stannard Baker, described Brandeis’s impact on what had been a dull Interstate Commerce Commission hearing on railroad rates:

I remember the sudden change in the whole atmosphere…, the new electricity, when Mr. Brandeis’ tall, spare, rugged, slightly stooping figure arose in the middle of the room to dispute the claim of the railroads. Almost from the first sentence…one felt a new sense of breadth of grasp, sureness of understanding…. His large head with the stubborn black hair streaked with iron-gray…the striking, dark, strong face…. His face, indeed, at certain angles, and especially in repose, recalls almost startlingly one of the portraits of Abraham Lincoln.

In the early years of the twentieth century, Brandeis moved from a Boston reformer to a national figure. From 1910 on he was away from his Boston home for weeks at a time, dealing with labor disputes in New York, advising cabinet members after Wilson’s election in 1912, and, after 1914, running the Zionist movement from wherever he was. He wrote to Alice every day about what he was doing.

He was such a well-known national figure that his nomination to the Supreme Court was not exactly a surprise. But the negative response on the political right was stronger than Brandeis or Wilson had anticipated and there were times during the next four months when it seemed doubtful that the Senate would approve. On June 1 it voted to confirm Brandeis, 47–22. Justice Oliver Wendell Holmes Jr., an old friend, sent him a one-word telegram: “WELCOME.”

The Supreme Court that Brandeis joined was an extremely conservative institution, its dominant doctrine almost unrecognizable today even as Chief Justice John Roberts endeavors to turn back the clock. State regulation of economic activity was regularly struck down as a violation of the Fourteenth Amendment’s clause forbidding the deprivation of property without due process of law. That phrase, “due process of law,” might naturally have been read as a protection of procedural fairness; but the Court had made it into a substantive bar to regulation.

Thus in 1905, in the case of Lochner v. New York, the Court struck down a New York state law limiting bakers to sixty hours of work a week. The legislature had adopted it as a health and safety measure, but a 5–4 majority of the Court found that it violated the due process clause in denying the bakers and their employers “freedom of contract.”

The Lochner doctrine dominated the Supreme Court’s economic jurisprudence for decades. The Court used a different device when it overturned federal laws regulating economic activity. The Constitution gives Congress power over commerce among the states, but the Court limited that power to actual movement across state lines—so manufacturing, even for a national market, was not “commerce.”

That line of legal reasoning reached an apogee in the 1918 case of Hammer v. Dagenhart, striking down a congressional statute that banned child labor. Holmes dissented, joined by Brandeis and two other members of the Court. “It is not for this Court,” he wrote, “to pronounce when prohibition is necessary to regulation…—to say that it is permissible as against strong drink but not against the product of ruined lives.”1

Claims that efficiency justified the concentration of power did not impress Brandeis: he put freedom ahead of efficiency. When the Court in Myers v. United States in 1926 exalted presidential power on grounds of efficiency, he wrote in dissent that the Constitution had separated the federal government into three branches

not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.

The Court’s vetoing of state economic and social legislation touched another fundamental in the Brandeis philosophy: the Constitution’s preservation of the states as independent centers of power. Between 1920 and 1930, Urofsky reckons, the Court struck down 140 state laws, most often on the ground that they violated due process by invading private business. Brandeis warned that the Court was acting like a “super-legislature,” writing the justices’ own views into law.

His great statement of belief in the value of independent states came in 1932, in the case of New State Ice Co. v. Liebmann. Oklahoma, in an effort to limit business competition during the Depression, passed a law requiring anyone who wanted to make and sell ice to get a certificate of convenience from the state. A 5–4 majority of the Supreme Court held that the law violated the due process clause because the public interest was not a matter affected by ice. In dissent, Brandeis wrote:

  1. 1

    Holmes’s mention of “strong drink” was a reference to a wartime prohibition law, upheld by the Court.

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