Brandeis, Louis D.

Brandeis’s focus on the facts of the case was part of a philosophy of sociological jurisprudence. His sympathy for the weak and poor and opposition to big corporate and government control helped shape the political response to both the excesses of corporate America and government incursions against personal liberties.

Except for three years spent in Central Europe, Brandeis’s formative years were not much different from those of other successful middle-class youth. He came from a very tightly knit, hard-working Bohemian GermanJews;Brandeis, Louis D. Jewish family and followed the American dream. He was an outstanding student at Harvard Law School and developed a commercial law practice in Boston.Wilson, Woodrow;nominations to the Court

Louis D. Brandeis

(Library of Congress)

The practice flourished, a testimony to Brandeis’s skills as a lawyer: mastery of detail, logic of argument, clarity of communication, and focus on goals. His reputation spread and his wealth grew. Along the way, however, he became interested in protecting the rights of those who were disadvantaged and suffered from the damages caused by rapid industrialization and the immense power of the new corporate giants.

The Two Passions

Much of Brandeis’s work revolved around one central idea the evil of bigness. He was convinced that excessive size and power were evil and incorrect. Bigness led to abuse of power and to corruption; moreover, it was inefficient, not just for the individual company but also for the society because it stifled competition.

For Brandeis, the issue was not simply economic it was a moral crusade. Early on, in Boston, he started to fight big corporations: the railroad company that sought to monopolize the local railway, big banks, and utility companies. As his practice grew, Brandeis became more involved in public law, offering his service for free a very uncommon practice then. His success in the courtroom led to wider contacts and to cases across the county, of sufficient repute that he was called the “people’s lawyer.” In one such case, Muller v. Oregon[case]Muller v. Oregon[Muller v. Oregon] (1908), Brandeis prepared a very detailed, long legal brief explaining in much detail the impact on women of working long hours. This practice became known as a Brandeis BriefBrandeis Brief.

Brandeis’s success in attacking big corporations and big government brought him into contact with leading ProgressivesProgressivism. Although raised a progressive, antislavery Republican, he later switched to the increasingly liberal Democrats and became close to Woodrow Wilson. Brandeis consulted closely with the president and became one of the architects for Wilson’s “New Freedom” program, basically regulation of business excesses, including the Clayton Act, a 1914 antitrust statute.

The second major passion was Zionism. Raised without formal religion and with little identification as a Jew, Brandeis became committed to Zionism as an adult. Over the course of his lifetime, he became the most well-known leader of the American Zionist movement and a major activist on the world scene. His commitment to a Jewish state was built on his sympathy for the poor persecuted JewsJews;Brandeis, Louis D. of Eastern Europe and their need for a place of refuge.

On the Court

Jews;on the Court[Court]Brandeis’s reputation preceded him to the Supreme Court. He examined closely the facts of the cases and continued to be unsympathetic to large institutions. Nevertheless, he learned to use judicial restraint. He believed that the Court should not usurp the role of the legislature and that the national government should not suppress attempts by the state legislatures to regulate their economies. However, he also thought that no level of government should infringe on personal liberty.

Brandeis challenged and eventually convinced the Court to stop using the due process clause of the Fourteenth Amendment to strike down economic legislation, including regulation of child labor, as an infringement on the freedom of contract. He dissented in a number of cases that struck down New Deal legislation; again, the Court came around to his position. Ironically, Brandeis personally opposed much of this legislation because it created too strong a national government.

Brandeis also helped reverse the rule whereby federal courts could not ignore state law in favor of federal common law, in Erie Railroad Co. v. Tompkins[case]Erie Railroad Co. v. Tompkins[Erie Railroad Co. v. Tompkins] (1938). This rule had allowed commercial litigants to move their cases to the federal courts where they could evade state commercial regulation.

In the area of civil liberties, however, Brandeis did believe that the Constitution set out strictures on the government that also applied to the states, especially in the matter of speech. It was not the government’s business to regulate what the people heard; Brandeis believed that the people were eventually capable of making the right decisions.

Dissenting in Gilbert v. Minnesota[case]Gilbert v. Minnesota[Gilbert v. Minnesota] (1920), Brandeis suggested that the liberty guaranteed by the Fourteenth Amendment extended beyond property rights to include personal freedoms such as those found in the Bill of Rights. Five years later, in Gitlow v. New York[case]Gitlow v. New York[Gitlow v. New York] (1925), the Court accepted this idea, at least for freedom of speech. Later, many of the other provisions of the Bill of Rights were incorporated and applied to the states. Brandeis later wrote one of the most eloquent defenses of free expression in Whitney v. California[case]Whitney v. California[Whitney v. California] (1927). Beyond free speech, Brandeis argued for the inclusion of privacy as one of the fundamental rights. Brandeis’s powerful dissent in the wiretapping case Olmstead v. United States[case]Olmstead v. United States[Olmstead v. United States] (1928) was used forty years later to protect privacy against a series of limitations set by the states, including the right to an abortion.

Brandeis’s reputation and words long outlived him on the Court. Few justices had as strong an impact on the guidelines for preparing legal briefs and the acceptance of the relevance of sociological facts. Years later, his vision of personal liberty became accepted as the dominant constitutional standard.

Further Reading

  • Bader, William H., and Roy M. Mersky, eds. The First One Hundred Eight Justices. Buffalo, N.Y.: William S. Hein, 2004.
  • Dawson, Nelson L., ed. Brandeis and America. Lexington: University of Kentucky, 1989.
  • Mason, Alpheus T. Brandeis: A Free Man’s Life. New York: Viking, 1946.
  • Paper, Lewis J. Brandeis. Englewood Cliffs, N.J.: Prentice-Hall, 1983.
  • Parrish, Michael E. The Hughes Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-Clio, 2002.
  • Renstrom, Peter G. The Taft Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-Clio, 2003.
  • Strum, Philippa. Brandeis: Beyond Progressivism. Lawrence: University of Kansas, 1993.
  • Urofsky, Melvin. A Mind of One Piece: Brandeis and American Reform. New York: Scribners, 1971.
  • Vile, John R., ed. Great American Judges: An Encyclopedia. Foreword by Kermit L. Hall Santa Barbara, Calif.: ABC-Clio, 2003.

Brandeis Brief

Erie Railroad Co. v. Tompkins

Incorporation doctrine

Muller v. Oregon

Olmstead v. United States


Whitney v. California

Wilson, Woodrow