Louis Dembitz Brandeis ( 1856–1941 ) had several careers— lawyer, reformer, Zionist leader, and, most notably, associate justice of the US Supreme Court from 1916 until 1939. Throughout his life he had certain principles of governance to which he adhered. These may be summarized as follows:
Early in his career as a lawyer he said that he hoped to give a few hours a week to the public good, and even more time later in life. He began the practice of representing, without charging a fee, what he considered public interests; what we now call pro bono work was considered strange, even radical, at the time. He believed that the established interests had sufficient funds to hire lawyers to plead their case but that no one spoke for the citizenry in trying to determine what would be the best policy choices. He fought sweetheart deals in building a new Boston subway, and later opposed the financier J. P. Morgan's efforts to monopolize New England transportation. By 1908 he had earned the reputation as “the people's attorney,” but he always claimed that he acted as any citizen should.
Whereas many progressive reformers looked on politics as a corrupt enterprise, Brandeis argued that, unless good people got involved, policy making by state legislatures and Congress would be solely under the influence of established interests. Citizens needed not only to vote but to make sure that good candidates stood for office. Almost from the beginning of his career as a reformer, he organized what we would now call citizen lobbies to work for needed programs. He helped lead the Public Franchise League in lobbying the Boston city council and the state legislature to secure fair terms and cheap fares on any new subways built in the city. Following the insurance scandals of 1906, he organized the Savings Bank Insurance League, a statewide organization that successfully pressured the legislature to establish an inexpensive workingmen's insurance plan. He used all the techniques with which Americans have become familiar—publicity in the media, endorsements by well-known business and civic leaders, and letter-writing campaigns. Whenever he testified before a committee, he made sure the room was full of constituents from the committee members' home districts.
The story is told that one day a group of Harvard students came to Brandeis's office and offered to work for him in his reform campaigns, assuming they would then labor alongside not only Brandeis but also progressive politicians such as Robert La Follette ( 1855–1925 ), Woodrow Wilson, and others who called on Brandeis for advice. Instead he told them to attend a city council meeting, at which each of them should pick out one area and make that subject his own, learning everything there was to know about garbage collection, water and sewage systems, subways, or other municipal matters. Then when they spoke, confident in their knowledge, the council would listen. Although the students left disappointed, Brandeis's advice aimed at making them informed citizens who would be involved in political decision making.
When Brandeis went on to the Supreme Court in 1916, there was little free speech jurisprudence, and most of it followed the English policy of punishing speech that had a “bad tendency.” When the first seditious speech cases came to the court shortly after World War I ( 1914–1918
In the early part of the twentieth century, conservative jurists on state courts as well as the US Supreme Court saw it as their duty to protect private property interests against intrusions into the marketplace by legislatures. Courts struck down a variety of measures providing for maximum hours, minimum wages, workplace safety, rights of labor unions, and consumer protection, all in the name of substantive due process, which, they claimed, had been designed to protect property and to keep the government from interfering with the natural workings of the market.
Both Brandeis and Holmes opposed these rulings, albeit for different reasons. Holmes was skeptical that reform would work, but, as he put it, “if my country wants to go to hell, I'm here to help.” Brandeis, on the other hand, believed in reform, and that judges should not interpose their views of proper policy ahead of the people's elected representatives. He often said that judges are supposed to know the law but do not know facts, and he set out to educate them on why certain legislative decisions had been made.
In his famous brief in Muller v. Oregon ( 1908 ), Brandeis had included only two pages of legal citations and over 100 pages of government and medical reports and other information to show that long hours of work were injurious to women, which is why the Oregon legislature had passed a maximum hours law. He won that case, and during the 1920s he often wrote what amounted to a “Brandeis brief” in his dissents when the conservative majority on the court struck down reform legislation. It is not that Brandeis always thought the people made wise decisions; he opposed much of Roosevelt's New Deal, but he voted to sustain those laws in court because he believed the people and their representatives should be free—absent a direct constitutional prohibition—to experiment. If apolicy proved wrong, the legislatures, and not the courts, should remedy the problem.
Brandeis always considered himself a conservative in the mode of the British political theorist and statesman Edmund Burke ( 1729–1797 ), who believed that in order to preserve the best of the past, change was sometimes necessary. He was not a liberal—in the sense that he did not favor large-scale government programs—but he was an implacable democrat in his belief in the right, and the ability, of the people to govern themselves.
SEE ALSO American Constitutional Development from 1868 to 1937 ; Freedom of Speech: Advocacy in Times of Crisis ; Holmes, Oliver Wendell, Jr. ; Supreme Court of the United States ; Whitney v. California .
Blasi, Vincent. “The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney v. California.” William and Mary Law Review 29 (1988): 653–97.
Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis, J., dissenting).
Strum, Philippa. Louis D. Brandeis: Justice for the People.
Cambridge, MA: Harvard University Press, 1984. Urofsky, Melvin I. Louis D. Brandeis: A Life. New York: Pantheon, 2009.
Whitney v. California, 274 U.S. 357 (1927) (Brandeis, J., concurring).
Melvin I. Urofsky
Virginia Commonwealth University