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Brandeis, Louis Dembitz

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Birth: November 13, 1856, Louisville, Kentucky.

Education: Harvard Law School, LL.B., 1877.

Official Positions: Attorney, Public Franchise League and Massachusetts State Board of Trade, 1897–1911; counsel, New England Policyholders' Protective Committee, 1905; special counsel, wage and hour cases in California, Illinois, Ohio, and Oregon, 1907–1914; counsel, Ballinger-Pinchot investigation, 1910; chairman, arbitration board, New York garment workers' labor disputes, 1910–1916.

Supreme Court Service: Nominated associate justice by President Woodrow Wilson, January 28, 1916, to replace Joseph R. Lamar, who had died; confirmed by the Senate, June 1, 1916, by a 47–22 vote; took judicial oath June 5, 1916; retired February 13, 1939; replaced by William O. Douglas, nominated by President Franklin D. Roosevelt.

Death: October 5, 1941, Washington, D.C.


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Louis Dembitz Brandeis
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Louis Dembitz Brandeis

When Louis Brandeis was nominated to the Supreme Court in 1916, his wife wrote to his brother, “I tell Louis, if he is going to retire, he is certainly doing it with a burst of fireworks.” Although Brandeis would become the first Jew to sit on the Court, the fireworks resulted less from his religion than from the political philosophy and the approach to law for which he had already become famous. Both the philosophy and the approach were considered unacceptably radical by influential elements of the business and legal communities. From their point of view, Brandeis's opponents were correct: when Brandeis took his seat on the Court after a fierce and bitter confirmation process, he quickly demonstrated that his ideology and jurisprudence would illuminate his decisions as a justice. In doing so, they also permanently altered American constitutional jurisprudence.

Brandeis graduated at the top of his class (1877) at Harvard Law School, where Christopher Columbus Langdell had introduced the case method and taught that law was a dynamic entity based on social realities. When Brandeis went on to practice law in Boston, he insisted on understanding not only his clients' immediate problems but also the economic and, occasionally, the political context in which they arose. He did so, he told a young associate, because “knowledge of the decided cases and of the rules of logic cannot alone make a great lawyer.… The controlling force is the deep knowledge of human necessities.… The duty of a lawyer today is not that of a solver of legal conundrums: he is indeed a counsellor at law.” He noted in a memorandum on “The Practice of the Law” that a lawyer was “far more likely to impress clients by knowledge of facts than by knowledge of law.”

By 1916 Brandeis had impressed enough clients to support a highly lucrative law firm. He had also made an impact on a variety of leaders in public life and on the public itself. The media referred to him as the “people's attorney” because of his involvement in movements for social justice: legalization of unions, women's suffrage, maximum hours and minimum wage legislation, and the use of natural resources for the public rather than the private good. He had fought with some success against the trusts that controlled much of the U.S. economy. His investigation of the insurance industry resulted in his invention of savings bank life insurance. He earned a reputation for integrity by engaging in most of his battles without pay and through his continual criticism of government and corporate corruption. He campaigned vigorously for Woodrow Wilson in the 1912 presidential election; in fact, Arthur Link, Wilson's chief biographer, has attributed Wilson's New Freedom platform to Brandeis's economic thought. Such pre-Court battles both reflected and shaped Brandeis's political ideas, which in turn underlay his judicial opinions. As Paul Freund, one of his law clerks, commented, “It is hardly likely that anyone came to the Supreme Court with a more closely articulated set of convictions than those which Brandeis held.”

The opinions Brandeis wrote as a justice were logical extensions of his ideas about the nature of the democratic state and the role of the individual within it. In the ideal society, government enabled individuals to reach their full potential as self-fulfilled members of a just community, and individuals willingly assumed their civic responsibilities. Development of human potential required that each individual have access to ideas, a concept given concrete form in the legal doctrine of freedom of speech and press. Human development also depended on the leisure to learn about potential public policies and associate with others for discussion of public matters, and in the opportunity to participate in the processes through which the policies were determined. A democratic state responsive to the electorate was one in which neither economic nor political institutions were large enough to make individual beliefs irrelevant or to stultify experimentation. To Brandeis, federalism was not just a historically useful system that had enabled thirteen colonies to unite as a nation; rather, it was a productive mechanism for experimentation with new government policies. He insisted on each citizen's civic responsibility and was adamant about education, which continued in one way or another throughout life, as a precondition for a democratic electorate.

Brandeis's sociological jurisprudence followed logically from his democratic philosophy. Law represented the will of the people, which in turn reflected their perception of society's needs. As the needs changed, so should the laws, including the Constitution, which judges had an obligation to read according to current societal necessities. Society's needs could be ascertained only by examining facts, either in legislative hearings or by evaluating data accumulated during societal experimentation. He scorned the late nineteenth- and early twentieth-century attorneys who made themselves servants of corporations, telling the Harvard Ethical Society in 1905 that his vision of the ideal lawyer was drawn from the early United States, when “nearly every great lawyer was …. a statesman: and nearly every statesman, great or small, was a lawyer,” holding “a position of indepen-dence, between the wealthy and the people, prepared to curb the excesses of either.” The role of lawyers in a democratic polity was to defend legislative social experiments by providing judges with sufficient factual material for a determination that the experiments constituted reasonable responses to problems.

Brandeis had done precisely that in the innovative and almost immediately famous “Brandeis brief” that he and his sister-in-law, Josephine Goldmark, prepared for Muller v. Oregon (1908). Faced with a challenge to an Oregon statute limiting the maximum number of hours women could work for pay, Brandeis and Goldmark presented the Supreme Court with two pages of traditional legal argument and more than 100 pages of factual data demonstrating the deleterious effect of overly long hours on women's health and the well-being of their families. After winning the case, Brandeis and Goldmark went on to use similar and equally successful arguments to defend other statutes establishing maximum hours and minimum wages for women. Brandeis realized that although it would negate his gender-based argument in Muller, the same approach should be taken toward hours and wage legislation for men, and he therefore helped secure publication of Goldmark's careful collections of data supporting that argument. In 1916 they labored for six months on a brief defending an Oregon law setting maximum hours for men. The case, Bunting v. Oregon (1917), was turned over to Felix Frankfurter when Brandeis was appointed to the Supreme Court.

Brandeis is perhaps best known for his judicial opinions in the areas of social experimentation, the size of economic and political institutions, and civil liberties, but his reputation also lies in part on his advocacy of limited judicial intervention in policy making. He did not ignore the judicial properties in pursuit of his goals for the country. Judicial restraint was central to his sociological jurisprudence. It was as undemocratic and unwise for judges to make social policy as it was for them to jump into cases when matters were not ripe for decision. When Arizona sued to prevent the construction of Boulder Dam and the possible diversion of water to California, for example, Brandeis pointed out that construction of the dam had not yet begun and so there was no need for the Court to decide whether waters that might never be taken from Arizona could legitimately be diverted (Arizona v. California, 1931). If a party based its case on a right new to American law, as happened when the Associated Press claimed that it had a property right in its dispatches, Brandeis, in dissent, objected to the Court's usurpation of the legislative function by creating and legitimizing a largely undefined right (International News Service v. Associated Press, 1918). Similarly, he dissented from the Court's declaration in Eisner v. Macomber (1920) that stock dividends were a category of untaxable property, saying that it was up to a legislature to decide.

His most explicit statement about the limits of judicial review came in Ashwander v. Tennessee Valley Authority (1936), in which the power of the Tennessee Valley Authority to construct the Wheeler Dam was challenged by a stockholders' suit. Although Brandeis concurred in the Court's holding that the project was constitutionally valid, he stated that he would not have reached the constitutional issue because the plaintiffs had no real standing to sue. He drew on earlier Court decisions to list the restrictive guidelines he believed the Court ought to follow in dealing with constitutional questions: declining to hear “a friendly, non-adversary, proceeding,” a case where the complainant has suffered no real injury, or one in which a complainant challenged a statute from which he had benefited; making no decision on constitutional grounds if others were available; and issuing rules of constitutional law that were as narrow as possible.

As a lawyer, he had fulminated against the Court's interpretation of the Fourteenth Amendment's due process clause to promulgate what he considered judge-made doctrines such as liberty of contract in order to strike down social policy enacted by state legislatures. As a judge, he maintained his insistence on judicial restraint, even when he disagreed with the legislative experiment at issue. In 1932 the Court struck down an Oklahoma law forbidding any new ice company to open without first acquiring a certificate of public convenience and necessity from the state (New State Ice Co. v. Liebmann). The rationale was that licensing would minimize the higher consumer costs caused by wasteful duplication of plants and delivery service. Justice Sutherland, however, speaking for the Court, said that the ice business was not “affected with a public interest” and that all the Oklahoma statute did was create the possibility of monopoly.

Brandeis had fought against monopoly and the suppression of competition as a lawyer. He nevertheless dissented from the Court's decision in the Oklahoma case and wrote fourteen heavily footnoted pages to show that social conditions in Oklahoma might well have led the legislature to believe that excessive competition had added to the impact of the Depression on unemployment and low prices. He indicated that he disliked the law, asserting that most people “realize that failure to distribute widely the profits of industry has been a prime cause of our present plight.” But his own view, or that of “most” people, was irrelevant to him as a justice: Oklahoma's experiment was rational, and the Court ought to permit it to continue.

Frankfurter commented that Brandeis believed that the Constitution “provided for the future partly by not forecasting it and partly by the generality of its language.” The Constitution, according to Brandeis, was designed to be flexible. It was as amenable to legislative experimentation as to judicial imagination, and he frequently reminded his colleagues of John Marshall's statement in McCulloch v. Maryland (1819): “We must never forget that it is a constitution we are expounding.” Brandeis wrote in New State Ice:

There must be power in the States and the Nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs. To stay experimentation in things social and economic is a grave responsibility which might be fraught with serious consequences to the nation.

He noted his belief that federalism enabled states to serve as laboratories for social change and urged the Court not to hinder federalism by “erect[ing] our prejudices into legal principles.” “If we would guide by the light of reason,” he declared, “we must let our minds be bold.”

One of Brandeis's bêtes noires was the Court's 1842 decision in Swift v. Tyson that federal courts were not bound by state common law, but could follow their own doctrines. Brandeis had joined fellow justice Oliver Wendell Holmes's campaign to overrule the decision, which enabled businesses to circumvent local law by litigating in federal rather than state courts. Swift violated Brandeis's belief in federalism, accountability of economic power, and state experimentation with controlling economic institutions. At the successful conclusion of a lengthy campaign, Brandeis was able to write the Court's opinion in Erie Railroad Co. v. Tompkins (1938), negating Swift by declaring that whenever a state's laws were at issue, federal courts hearing cases in the state would be bound by the decisional rules of the state's highest court. On the same day, he wrote for the Court in Hinderlider v. La Plata River & Cherry Creek Ditch Co. (1938), a case concerning an interstate compact, that when cases involved only federal issues and state decisional rules would be inappropriate, decisions were to be made under federal common law. He thereby protected federal supremacy while retaining an emphasis on federalism and state power for experimentation.

These themes, linked closely to his distaste for bigness, ran through many of his opinions. His first dissent, in New York Central Railroad v. Winfield (1917), rejected the Court's declaration that the Federal Employers Liability Act filled the field of compensation for injuries to interstate railroad employees. Brandeis refused to read the act as reflecting congressional intent to preclude state protection for workers, because:

it is the state which is both primarily and ultimately concerned with the care of the injured.…. Upon the state falls the financial burden of dependency, if provision be not otherwise made.… Upon the state also rests, under our dual system of government, the duty owed to the individual, to avert misery and promote happiness so far as possible.

Clearly, he perceived the state as a positive institution that could increase individual happiness by alleviating economic injustices.

In Winfield, he signaled the way he would approach cases, discussing “world experience in dealing with industrial accidents” and relying on facts to bolster his argument that it was reasonable to believe that further compensation was necessary. When the Court overturned a state statute prohibiting employment agencies from charging workers for whom they found jobs, Brandeis dissented again, writing at length in Adams v. Tanner (1917) about the abusive practices of employment agencies that were the target of the legislation and reiterating his contention that courts lacked authority to strike down social legislation unless examination of the facts demonstrated that it was unreasonable.

Brandeis quickly realized that many attorneys appearing before the Court failed to prepare the kind of fact-laden argument he had used in Muller. Undaunted, he decided that if attorneys did not perform that function, the justices would have to do it for themselves. In Jay Burns Baking Co. v. Bryan (1924), which examined the constitutionality of a Nebraska consumer protection law that set weight standards, including maximum weight limits, for commercially sold loaves of bread, the Court's majority held that the law took bakers' and dealers' property without due process of law. Brandeis disagreed and chastised his brethren for not examining the relevant facts. We justices, he said somewhat disingenuously, had

merely to acquaint ourselves with the art of breadmaking and the usages of the trade; with the devices by which buyers of bread are imposed upon and honest bakers or dealers are subjected by their dishonest fellows to unfair competition; with the problems which have confronted public officials charged with the enforcement of the laws prohibiting short weights, and with their experience in administering those laws.

Brandeis fulfilled this “mere” task by presenting the Court with fifteen pages of information about the baking industry, most of it in lengthy and forbidding footnotes.

Brandeis's penchant for upholding state experimentation continued throughout his years on the Court. In 1933 the Court overturned a Florida law that, seeking to discourage chain stores, imposed heavier license fees on stores that were part of multicounty chains than on independent shops. The Court declared that Florida's classification of stores lacked a rational basis (Liggett v. Lee). Brandeis disagreed and wrote a long essay on the evils of economic bigness, and particularly of the corporations he believed had grown so large that they were a menace to American democracy. They were able to dominate states and citizens, he warned the Court, saying, “The lives of tens or hundreds of thousands of employees and the property of tens or hundreds of thousands of investors are subjected, through the corporate mechanism, to the control of a few men.” The United States was in the grip of “the rule of a plutocracy.” Five of the twelve plaintiff corporations in the case had assets of more than $90 million each; among them, they controlled more than 19,718 stores throughout the country. Florida might well have believed that this “concentration of wealth and of power and …. absentee ownership” was “thwarting American ideals,” making equality of opportunity impossible, “converting independent tradesmen into clerks; and that it is sapping the resources, the vigor and the hope of the smaller cities and towns.”

Brandeis had declared war on concentrated power, warning that unbridled bigness ultimately would prove a false panacea for the country's economic ills. This theme resounded throughout many of his 528 judicial opinions. He was equally certain that concentrated government power was undemo-cratic, however worthy particular government policies might be. He saw federalism as similar to separation of powers: both arrangements were aspects of the Constitution's solution to the problem of government size. Just as jurisdictional rules helped keep the Court within the boundaries prescribed by the Constitution and prevented it from intervening in problems that were too complicated or remote for any nine justices to solve, so part of the Court's function was to maintain the margins of separation between the federal executive and Congress, and between the federal government and the states.

He therefore dissented when the Court held that a president could fire a civil servant unilaterally in spite of a statute requiring Senate advice and consent before such a removal. Answering the argument that it was more efficient for the chief executive to act unilaterally against civil servants he found unacceptable, Brandeis declared that “the doctrine of the separation of powers was adopted by the Convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power” (Myers v. United States, 1926). “The purpose,” he continued, “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.”

He held to this principle even when it meant infuriating President Franklin Roosevelt, most of whose New Deal programs Brandeis endorsed. Brandeis was not willing to permit the emergency of the Depression to be used as an excuse for concentration of power within the executive branch. His reluctance became clear when the Court pondered the constitutionality of the National Industrial Recovery Act of 1933 (NIRA), which Roosevelt considered a cornerstone of his recovery plan for the country. The legislation created the National Recovery Administration (NRA) to carry out the law, which exempted industries from antitrust laws if they adopted codes providing for specific wages, hours, conditions of employment, and prices. The act provided no guidelines for the codes, however, giving the president total power to approve or disapprove them.

During oral argument in two 1935 cases resulting from the prosecution of oil company officials for ignoring the code Roosevelt had promulgated (Panama Refining Co. v. Ryan and Amazon Petroleum Corporation v. Ryan), one company's attorney asserted that his client had not known the law existed and that the only copy he knew of was in the “hip pocket of a government agent sent down to Texas from Washington.” Brandeis turned to the government's lawyer and demanded, “Who promulgates these orders and codes that have the force of law?” The lawyer replied that, as they were promulgated by the president, “I assume they are on record at the State Department.” This reply was insufficient, and Brandeis pressed further: “Is there any official or general publication of these executive orders?” “Not that I know of,” came the answer, with the lawyer finally admitting lamely, “I think it would be difficult, but it is possible to get certified copies of the executive orders and codes from the NRA.” Brandeis joined seven of his colleagues in striking down this portion of NIRA as an improper delegation of congressional powers to the executive.

He went further a few months later and voted to nullify the entire act, agreeing with Chief Justice Charles Evans Hughes's opinion for the Court that the massive delegation of power to the president was unconstitutional in all situations (Schechter Poultry Corp. v. United States, 1935). Among the other decisions handled down the same day was Humphrey's Executor v. United States, in which the Court effectively and unanimously overturned its ruling in Myers, vindicating Brandeis by holding that the president could not remove members of independent regulatory commissions. Brandeis announced a third opinion, again for a unanimous Court, holding unconstitutional the Frazier-Lemke Act of 1933, which had permitted farmers to defer mortgage payments. Brandeis and the Court declared that the statute, which authorized bankruptcy courts to take title to the property from the banks that held the mortgages, violated the Fifth Amendment's property clause (Louisville Joint Stock Land Bank v. Radford, 1935). The reason for Brandeis's distaste for a law that seemed on its face to protect farmers became apparent when he noted that, under the act, the definition of farmer included “persons who are merely capitalist absentees.” “Capitalist absentees” was Brandeis's language for owners of land or stock whose concentrations of money gave them excessive power, and here they were being protected by the federal government.

“This is the end of this business of centralization,” Brandeis told Roosevelt adviser Thomas G. Corcoran. “I want you to go back and tell the President that we're not going to let this government centralize everything.” Brandeis approved of Roosevelt and used occasions such as his well-known weekly teas to tell New Dealers of his enthusiasm for the economic policies he hoped Roosevelt would propose, many of which the president in fact adopted. But bigness in government could be every bit as oppressive as bigness in business, and Brandeis would have no part of it.

Brandeis's opinions differed from those of his colleagues because he included in them the social realities leading to the legislation that came before the Court. This point of view reflected both his belief that factual information had to underlie all constitutional adjudication and his desire to use judicial opinions as educational devices. It was as important for citizens to understand the reasons behind the law as it for was for them to know what the law was. His clerks were expected to help him make his opinions not only “persuasive” but “instructive.” They were sent regularly to find additional relevant statistics in the Library of Congress, even after an opinion had been written, and they frequently discovered that in his endless rewriting Brandeis had made as many as sixty changes in a draft of ten pages and had revised an opinion for the twentieth or thirtieth time. He tried to make clear not only who was suing whom, but why.

The decisions written by his colleagues, such as Mahlon Pitney, William Howard Taft, or George Sutherland, hold little information about the nature of the struggle between labor and management, for example, but Brandeis's opinions reflect and explain the struggle. When the workers at Duplex, a manufacturer of newspaper printing presses, were enjoined from striking or calling on workers in similar plants to refuse to work on Duplex machines, he made sure that anyone reading the resultant case knew that there were only four such companies in the United States, and that the other three were unionized and had instituted minimum wages and maximum hours. Duplex had refused to recognize the union, which led two of the other manufacturers to threaten to break their agreements with the union, jeopardizing its existence. Dissenting in Duplex Printing Press Co. v. Deering (1921), Brandeis told his readers that the laborers were neither irrational nor greedy: “May not all with a common interest join in refusing to expend their labor upon articles whose very production constitutes an attack upon their standard of living and the institution which they are convinced supports it?”

Similarly, Brandeis explained at length why he dissented when the Court overturned an Arizona law forbidding its courts to issue injunctions against strikes and picketing (Truax v. Corrigan, 1921). Chief Justice Taft wrote about the equal protection and due process clauses of the Fourteenth Amendment; Brandeis, although touching on the relevant constitutional provisions, described the factual situation. Cooks and waiters at the English Kitchen on Main Street in Bisbee, Arizona, struck and encouraged a boycott of the restaurant by picketing and distributing leaflets. Brandeis could find nothing irrational in a state's decision to permit disgruntled workers to tell their story to the public and to refuse courts the power to stop them from doing so. The law admittedly was a societal experiment, he declared, and wrote fourteen pages showing that England, the British dominions, the federal government, and other states had similar experiments: that was sufficient to demonstrate that the statute could not be brushed aside as either arbitrary or unreasonable.

Brandeis was as impassioned and influential in the area of civil liberties as he was in the economic sphere. His seminal contribution to the development of free speech jurisprudence has sometimes been underrated by scholars who have given Justice Holmes credit for the “clear and present danger” doctrine. Although Holmes first formulated the doctrine, writing in Schenck v. United States (1919) that the federal government could punish only speech that presented a clear and present danger, he did not define the terms clear, present, or danger; he suggested no criteria for doing so; and he stated that the doctrine was similar in peacetime and wartime. Brandeis subsequently elaborated on the doctrine, altering it substantially.

Brandeis considered free speech crucial to individual development and a necessity for the educated citizens that a democratic state demands. Speech, privacy, education, and democracy all were elements of the ideal political system. Democracy meant majority rule with full protection for the rights of individuals. Sociological jurisprudence, which in other spheres mandated judicial deference to the will of the majority, required that the judiciary play a central role in preventing government from interfering with individual rights. An educated electorate had to be able to engage in free and open discussion if law was to reflect felt necessities, experimentation was to occur, and socially responsive policies were to be developed.

Although Brandeis silently concurred in Holmes's opinion in Schenck, his rethinking became apparent in three dissents he wrote the following year. The first came in Schaefer v. United States (1920), an appeal from a conviction under the 1917 Espionage Act for printing misleading articles about the American war effort. Brandeis declared that the constitutional right of free speech was the same in wartime as it was during peace. In fact, he continued, it was precisely in time of war that free speech was most necessary, for it was then that “an intolerant majority” was most likely to be “swayed by passion or by fear.”

The second was Pierce v. United States (1920), in which the Court upheld a second Espionage Act conviction, this one for distribution of Socialist leaflets that allegedly had interfered with the operation of the war effort and had caused insubordination. Brandeis's dissent reiterated his belief that the speech doctrine was identical in war and peace and that “the fundamental right of free men to strive for better conditions through new legislation and new institutions will not be preserved, if efforts to secure it by argument to fellow citizens may be construed as criminal incitement to disobey the existing law.” His third dissent came in Gilbert v. Minnesota (1920), a case challenging Minnesota's statute prohibiting any interference with the military enlistment effort, as applied to a speaker who had criticized the war and the draft during a public meeting. Describing the law as one that criminalized the teaching of pacifism, Brandeis condemned it for violating the rights of speech, privacy, and religion. In addition, he argued strenuously that if the Court used the Fourteenth Amendment's due process clause to strike down states' economic legislation, as it regularly did, surely the Court should apply the clause to state legislation that limited something as important as speech.

The Gilbert dissent laid the foundation for a major alteration of American law and for a reassessment of political values. In 1925, adopting Brandeis's argument, the Court declared that freedom of speech and press were “among the fundamental rights and ‘liberties’” protected by the due process clause (Gitlow v. New York). This case and subsequent cases in which the Court held one or another of the Bill of Rights’ liberties to be “incorporated” into the due process clause are responsible for the assumption, now part of American law and polity, that the Bill of Rights is a barrier to state, as well as federal, violation of individual liberties.

Brandeis's most eloquent contribution to free speech jurisprudence came in Whitney v. California (1927). Attacking a California statute outlawing political parties that advocated the use of illegal force, Brandeis aligned himself with the Founding Fathers, who, he asserted, “believed that the final end of the State was to make men free to develop their faculties.” This goal could be accomplished only if “deliberate forces” prevailed over those that were “arbitrary”; if citizens were not only free to speak their thoughts, but encouraged to exercise their responsibility to do so; and if the nation understood “that the fitting remedy for evil counsels is good ones.” Recognizing that by the time he wrote, the American government had become more active than it had been during its early years and that citizens now had reason to be concerned about how to keep the government within acceptable boundaries, he argued that “fear of serious injury” was insufficient justification for punishing speech, and he suggested a different standard:

There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one …. even advocacy of violence, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on.… In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.

Brandeis transformed Holmes's “clear and present danger” by defining present to mean that “the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” Brandeis also rejected Holmes's assumption that the government could act against speech presenting a danger of any evil the government had the right to prevent. The evil of “some violence or …. destruction of property” was not enough; the evil had to be “the probability of serious injury to the State.” If, as Brandeis suggested, it was unconstitutional to prevent or punish speech unless all reasonable people would agree that it represented a serious and imminent danger of probable injury to the state itself, the government's power to interfere with speech was minimal.

Although it came in equal measure from his pre-Court career and the eventual influence of his dissents from the bench, Brandeis had as great an impact on privacy jurisprudence as he had on free speech jurisprudence. In 1890 the Harvard Law Review had published “The Right to Privacy” by Brandeis and his law partner, Samuel D. Warren Jr. When Brandeis was nominated to the Court, Dean Roscoe Pound of Harvard Law School told the Senate that the article had added a chapter to American law. Combining a formulation of law as a changing entity with the concept of privacy, the article argued that new inventions with the potential for violations of privacy had to be brought under law in the name of protecting the individual's “right to be let alone.”

Brandeis and Warren were reacting to invasions of privacy by the press. By the time Brandeis joined the Court, government had access to the kind of technology that the article had warned about and had become big enough to represent a serious privacy threat. Brandeis now became concerned not only about the enhanced possibilities of government intrusion and their impact on the right of privacy, so central to the individual's development, but about the nature of a government that might resort to invasions of privacy. He therefore dissented when the Court upheld a conviction, under the Harrison Anti-Narcotic Act, obtained after the government induced two state prisoners to offer an attorney money for drugs and record their conversations with him.

As Holmes wrote for the Court in sustaining the conviction in Casey v. United States (1928), there was no doubt that the law had been broken. Brandeis agreed but declared that the conviction should be overturned because the government had instigated the crime and, absent government action, there would have been no evidence for the government to record. “The government …. may not provoke or create a crime and then punish the criminal, its creature,” he argued. He explained that he was less concerned about Casey than about the government, and voted as he did “not because some right of Casey's has been denied, but in order to protect the Government. To protect it from illegal conduct of its officers. To protect the purity of its courts.”

Similarly, Brandeis objected to a conviction under the National Prohibition Act, obtained as a result of evidence gathered during five months of government wiretapping. The Court held in Olmstead v. United States (1928) that wiretapping did not constitute the kind of physical trespass or seizure prohibited by the Fourth Amendment's search and seizure clause. Incredulous, Brandeis asked, “Can it be that the Constitution affords no protection against such invasions of individual security?” and answered his question by recalling the Founding Fathers' concern about writs of assistance and general warrants. Wiretapping was even more insidious than those devices because it was more intrusive. Brandeis urged the Court to adopt a socially responsive interpretation of the Constitution, including the search and seizure clause. “Rights of …. the liberty of the individual must be remolded from time to time,” he had written in Truax, “to meet the changing needs of society.” He was referring to the specific manifestations of the rights, not the rights themselves, which were unchanging, and which Brandeis found at the core of the Constitution. In Olmstead, he wrote:

The makers of our Constitution undertook …. 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.

Privacy and speech were connected in their centrality to the free flow of ideas and to individual growth. It was insufficient to claim, as the Court did, that the government had violated an individual right in the name of the greater good, because the greater good actually was being hurt by a well-intentioned but misguided government: “Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent.… The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” The government, by acting illegally, was encouraging disdain for law. Brandeis had warned in his dissent in Burdeau v. McDowell (1921): “At the foundation of our civil liberty lies the principle which denies to government officials an exceptional position before the law and which subjects them to the same rules of conduct that are commands to the citizen.… Respect for law will not be advanced by resort, in its enforcement, to means which shock the common man's sense of decency and fair play.” He added in Olmstead, “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.” And he warned: “To declare that in the administration of the criminal law the end justifies the means—to declare that the Government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.”

American constitutional law today is factoriented largely because of the Brandeis brief and the fact-based sociological jurisprudence embodied in almost all of Brandeis's judicial opinions. Joining a Court whose members were born in the nineteenth century, he helped wrench its collective face toward the twentieth century, constantly reminding the justices and the larger legal and political communities of changing societal realities. His fervent sense of democracy and the need of the political system for free, involved, and fulfilled citizens resounds through the words he wrote while on the bench. His conception of judicial opinions as lessons has been adopted, possibly to occasional excess, by subsequent justices. His innovative reaching out to the academic branch of the legal profession through citation of law review articles has now become routine in Court opinions. His insistence that both economic and political institutions had to be accountable to the people was adopted in part by the New Deal and later administrations. His perception of the law as a dynamic, changing entity and his delineation of the right of privacy have become embedded in American jurisprudence. Federal and state court decisions are replete with references to his opinions, particularly in the fields of speech and privacy. Dean Acheson, another of Brandeis's former clerks, told the mourners at the justice's funeral that “his faith in the human mind and in the will and capacity of people to understand and grasp the truth never wavered or tired.” Such was his legacy to the Supreme Court and to the American people.

Bibliography

The largest collections of Brandeis's Court papers, including the Brandeis papers and the Frankfurter papers, are in the Harvard Law School Library. Court-related items can be found in the Frankfurter papers at the Library of Congress and in the major Brandeis archives at the University of Louisville. Brandeis's letters, including many from the Court years, are in the well-annotated Letters of Louis D. Brandeis, eds. Melvin I. Urofsky and David W. Levy (5 volumes, 1971–1978); and “Half Brother, Half Son”: The Letters of Louis D. Brandeis to Felix Frankfurter (1991). Two useful compilations of his Court drafts are Alexander M. Bickel, ed., The Unpublished Opinions of Mr. Justice Brandeis (1957); and Philippa Strum, ed., Brandeis on Democracy (1995), which has material on the Court as well as documents from other aspects of his career.

Among the major biographies of Brandeis are Alpheus Thomas Mason, Brandeis: A Free Man's Life (1946); and Philippa Strum, Louis D. Brandeis: Justice for the People (1984). Alden Todd, Justice on Trial (1964), is a thorough account of the fight over the Brandeis nomination. Other volumes containing information about the Court years are Alpheus Thomas Mason, Brandeis: Lawyer and Judge in the Modern State (1933); Felix Frankfurter, ed., Mr. Justice Brandeis (1932); Samuel J. Konefsky, The Legacy of Holmes and Brandeis (1956); and Philippa Strum, Brandeis: Beyond Progressivism (1993). A major and extremely insightful article on Brandeis's First Amendment jurisprudence is Vincent Blasi, “The First Amendment and the Ideal of Civil Courage: The Brandeis Opinion in Whitney v. California,” William and Mary Law Review 29 (Summer 1988); see also Pnina Lahav, “Holmes and Brandeis: Libertarian and Republican Justifications for Free Speech,” Journal of Law and Politics 4 (1988). An excellent account of Brandeis's views on federal jurisdiction and the Erie Railroad case is Edward A. Purcell Jr., Brandeis and the Progressive Constitution (2000). For changing historical views on Brandeis's and Holmes's reputations, see the Symposium on “The Canonization of Holmes and Brandeis,” New York University Law Review 70 (1995).

Noteworthy Opinions

Schaefer v. United States, 251 U.S. 466 (1920) (Dissent)

Gilbert v. Minnesota, 254 U.S. 325 (1920) (Dissent)

Truax v. Corrigan, 257 U.S. 312 (1921) (Dissent)

Myers v. United States, 272 U.S. 52 (1926) (Dissent)

Whitney v. California, 272 U.S. 357 (1927) (Concurrence)

Olmstead v. United States, 277 U.S. 438 (1928) (Dissent)

New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) (Dissent)

Liggett v. Lee, 288 U.S. 517 (1933) (Dissent)

Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935)

Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936) (Concurrence)

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)

 

Document Citation
Brandeis, Louis Dembitz, in Biographical Encyclopedia of the Supreme Court 46 (Melvin I. Urofsky ed., 2006), http://library.cqpress.com/scc/bioenc-427-18975-1014150.
Document ID: bioenc-427-18975-1014150
Document URL: http://library.cqpress.com/scc/bioenc-427-18975-1014150