Justice Louis D. Brandeis (1856-1941) – Guest Essayist: Daniel A. Cotter

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Louis Brandeis: First Jewish Justice of the Supreme Court

Until 1916, the United States Supreme Court had never had a Jewish justice.  That changed on January 28, 1916, when Louis Brandeis, the “People’s Lawyer,” was nominated to the highest court in the land by President Woodrow Wilson. Brandeis served for almost twenty-three years and authored several significant opinions during his time on the Supreme Court.

Early Life and Career

Brandeis was born in Louisville, Kentucky on November 13, 1856, to Adolph and Frederika Brandeis (nee Dembitz), Jewish immigrants from Prague. His father was a successful grain merchant in Louisville, Kentucky.  Brandeis attended public schools in Louisville, graduating from Louisville’s Male High School at the age of fourteen.  When his family relocated to Europe in 1872, Brandeis studied for two years at the Annen Realschule in Dresden, Germany. Brandeis returned to the U.S. in 1875 and was admitted to Harvard Law School without a college degree at the age of 18. According to Harvard, Brandeis graduated with the highest grade point average in the law school’s history, blazing a meteoric trail as he graduated at the age of twenty.

Upon graduation, he moved to St. Louis, Missouri, but did not like it and moved to Boston. Shortly after returning to Boston, he was appointed as a law clerk to the Chief Justice of the Massachusetts Supreme Court, Horace Gray. Brandeis established a firm in Boston with his friend and classmate, Samuel Warren.  The firm has been in continuous practice since 1879 and is now known as Nutter McClennen & Fish. Brandeis had a broad practice, which allowed him to advocate for a number of progressive social causes.

Brandeis’ practice included counseling and advising a number of businesses, including railroads.  Although he preferred acting as a counselor and advisor, Brandeis also litigated and argued cases before the Supreme Court.

In the early 1880’s, he became an Instructor at Harvard Law School and helped found the Harvard Law Review in 1887.  In 1890, he and his partner Warren wrote a paper, “The Right to Privacy,” published in the Law Review that was to have a profound effect on the body of jurisprudence going forward.  

In 1908, Brandeis represented Oregon in a Supreme Court case challenging that state’s law limiting working hours for women. In Muller v. Oregon, Brandeis submitted what became known as the “Brandeis Brief,” a legal brief that relies more on scientific and social data than legal citations. (Thurgood Marshall and his team used the “Brandeis Brief” style effectively in Brown v. Board of Education.)  The brief was seen as revolutionary and helped Brandeis persuade the Court to uphold Oregon’s law as constitutional.

He became Chair of the Arbitration Board dealing with the New York garment worker’s strike, working tirelessly to effectuate a resolution to the matter. From 1912-1916, he served as President Woodrow Wilson’s economic advisor and, in 1914, he published a book, Other People’s Money and How the Bankers Use It, generally critical of the banking industry.

Brandeis took on a number of causes in his practice, including attacks on monopolies, attacks on big corporations and on mass consumerism.  Combined with his refusal to accept payment for what he deemed “public interest” cases, Brandeis became known as the “People’s Lawyer.” He was instrumental in creating a new life insurance system in Massachusetts and later in life became very involved as a leader in the Zionist movement.

Becoming a Justice

On January 28, 1916, President Wilson nominated Brandeis to the Supreme Court as an Associate Justice. (Previously, Wilson planned to nominate Brandeis as Attorney General or Secretary of Commerce, but backed down after a number of complaints were registered by conservative businessmen.)  His confirmation was controversial, and led the Senate Judiciary Committee to conduct its first public hearing on a Supreme Court nominee. Four months after his nomination, on June 1, 1916, Brandeis was confirmed by a 47-22 vote. Much of the fight was based on his radicalism and his having taken on big business so aggressively. (Some historians attribute much of the opposition to anti-Semitism.)

Brandeis proved to be an effective justice, writing many notable majority opinions, but he often dissented, especially in First Amendment cases.  For example, in Schaefer v. United States (1920), a case in which the Supreme Court held the Espionage Act constitutional in a case against several defendants who had published allegedly false reports and statements in a German language paper, Brandeis dissented, stating:

The constitutional right of free speech has been declared to be the same in peace and war. In peace, too, men may differ widely as to what loyalty to our country demands, and an intolerant majority, swayed by passion or by fear, may be prone in the future, as it has been in the past, to stamp as disloyal opinions with which it disagrees.

Other major opinions written by Brandeis include Whitney v. California (1927, concurring) (“Fear of serious injury cannot alone justify suppression of free speech and assembly”); Olmstead v. United States (1928, dissenting) (“[The makers of the Constitution] sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations” and “Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent”); and, Erie Railroad Co. v. Tompkins (1938) (there is no “federal general common law” in cases involving diversity jurisdiction). Erie was the last of his major decisions. On February 13, 1939, he retired from the bench and on October 5, 1941, he died in Washington, DC.

Conclusion

According to www.historynet.com, Louis Brandeis is one of the nine greatest justices who have served on the Supreme Court; the site groups Brandeis with Justices William Brennan and Oliver Wendell Holmes as the “Three Unyielding Contrarians.” His pointed and passionate dissents in the areas of privacy and free speech eventually became the majority view. His commitment to areas of public rights and his efforts in the Zionist movement produced a rich legacy. He set the path for future Jewish justices to sit on the Supreme Court, including current justices Elena Kagan, Stephen Breyer, and Ruth Bader Ginsburg.

Dan Cotter is a partner at Butler Rubin Saltarelli & Boyd LLP and an Adjunct Professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. The article contains his opinions and is not to be attributed to anyone else.

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