Louis Dembitz Brandeis - Further Readings
Louis Dembitz Brandeis's lifelong commitment to public service and social reform earned him the epithet the People's Lawyer. His twenty-three years on the Supreme Court were characterized by a deep respect for civil liberties and by an abiding distrust of centralized power in the hands of business and government.
Brandeis was famous for his prodigious intellect and his well-crafted, detailed dissents. He was a man of principle who enhanced the image of the legal profession by living up to his belief that lawyers should possess "the moral courage in the face of financial loss and personal ill-will to stand for right and justice."
Brandeis was born November 13, 1856, in Louisville, Kentucky, the youngest of four children of Adolph Brandeis and Fredericka Dembitz Brandeis. His parents were refined and well-to-do immigrants who left Prague, then part of Bohemia, in 1849. A brilliant student, Brandeis excelled in the public schools in Louisville. He also attended the Annen-Realschule, in Dresden, Germany, during his family's 1873–75 pilgrimage to Europe.
Although Brandeis did not have a college degree, he was admitted into Harvard Law School and graduated at the top of his class in 1877. Brandeis had an obvious passion for law and he considered the years at Harvard among the happiest in his life. His ties to the university were strengthened further in 1886 when he became one of the founders of the influential Harvard Law Review. Brandeis and Samuel D. Warren wrote a legendary article, "The Right to Privacy," in the December 1890 issue of the Review. It previewed Brandeis's Supreme Court opinions asserting privacy as a constitutionally guaranteed right.
After a year of graduate work Brandeis moved to St. Louis in 1878 to begin a law practice. He soon missed the intellectual stimulation of the East Coast and moved back to Boston, where he began a successful law practice with Warren. Their large firm had an impressive clientele and made Brandeis wealthy, although money held little interest for him. As he established himself professionally, Brandeis socialized with Boston's intellectual elite. In 1891, he married Alice Goldmark, a distant cousin, with whom he had two daughters.
Brandeis zealously embraced the ideals of the Progressive movement of the early twentieth century. He proved his dedication to social reform by serving as unpaid counsel in several public interest cases. Brandeis was one of the first U.S. lawyers to offer pro bono services (free legal services for people unable to afford an attorney). Along with a passionate belief in the virtue of volunteer legal work, Brandeis had a sense of fairness that compelled him to compensate his firm for any time spent in public service.
Brandeis worked without a fee to fight monopolistic streetcar franchises in Boston and to improve the questionable practices of life insurance companies. One of his most satisfying achievements was the creation of a savings bank plan that enabled people to obtain life insurance at reasonable rates. Brandeis also argued for the constitutionality of maximum hour and MINIMUM WAGE laws.
In 1914, Brandeis published Other People's Money—and How the Bankers Use It, a denunciation of trusts and investment banking. The book helped inspire important antitrust legislation and earned the antipathy of many U.S. bankers and businesspeople.
Brandeis also created a new style of legal writing, appropriately called the Brandeis brief.
With his sister-in-law Josephine Goldmark, of the National Consumer's League, Brandeis produced the first legal brief to include copious supporting data. For Muller v. State of Oregon, 208 U.S. 412, 28 S. Ct. 324, 52 L. Ed. 551 (1908), Brandeis wrote more than one hundred pages in favor of an Oregon state law mandating a maximum ten-hour workday for women. Later, when asked for an appropriate title for the seminal Muller brief, Brandeis replied, What Any Fool Knows. In the document, he described the deleterious physical and mental effects on women of extended periods of manual labor. He included references to sociology, psychology, history, politics, employment statistics, and economics; this method of amassing data from several different disciplines to persuade the court became popular with other lawyers. The legal principles of the case were discussed in about two pages.
In 1916 Brandeis was appointed by President WOODROW WILSON to fill the associate justice seat vacated by Joseph R. Lamar. Brandeis thus became the first Jewish American to be nominated for the High Court. His Senate confirmation hearing was a bitter, drawn-out affair because of business's fierce opposition to him and his progressive politics. Anti-Semitism was also an element in the extended, four-month proceedings. Despite virulent criticism from insurance and banking officials, Brandeis was confirmed by the Senate, 47–22.
As a Supreme Court justice, Brandeis is remembered for his eloquent dissents, often joined by colleague OLIVER WENDELL HOLMES JR. Brandeis's dissents frequently signaled how the Court would rule in future cases. For example, his 1928 dissent in OLMSTEAD V. UNITED STATES, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944, anticipated the reasoning and outcome of a Supreme Court case heard years later.
In Olmstead, Brandeis objected to the nearly unrestricted use of government wiretaps. Although the Olmstead majority approved state WIRETAPPING unless a physical TRESPASS was involved, Brandeis considered wholesale eavesdropping unconstitutional. In his view it violated the FOURTH AMENDMENT, prohibiting unreasonable government searches, and the FIFTH AMENDMENT, forbidding the deprivation of liberty without DUE PROCESS. Brandeis argued that the right to be left alone was guaranteed by the Constitution.
Almost forty years later, his views on privacy were adopted in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). In Katz, relying heavily on Brandeis's reasoning, the Court overturned Olmstead, ruling that government
wiretaps were permissible only if they met procedural requirements of the Fourth Amendment.
Despite his own clear convictions, Brandeis refused to declare a law unconstitutional simply because he disagreed with it. Particularly in economic matters, Brandeis exercised judicial restraint by deferring to Congress and its legislative power.
Brandeis was an ardent defender of civil liberties. Throughout his career, he strongly urged the Court to use the FOURTEENTH AMENDMENT to apply the BILL OF RIGHTS to the states. In particular, Brandeis declared that laws abridging free speech and assembly must be challenged if no emergency exists to justify them. Unless speech causes clear and imminent danger, it is unreservedly protected.
Although Brandeis was a nonobservant Jew, he was a respected leader of the American Zionist movement. From 1914 to 1921, Brandeis gave his name and public support to the movement to create a Jewish state in Palestine. In his later years Brandeis advised President FRANKLIN D. ROOSEVELT on the establishment of a Jewish homeland and the boycott of German products.
Brandeis retired from the Court on February 13, 1939. He died at age eighty-four, on October 5, 1941.
Brandeis was honored in 1948 when a new institution of higher learning was named after him. Brandeis University is a private, Jewish-sponsored, coeducational college in Waltham, Massachusetts. The nonsectarian school offers both undergraduate and graduate degrees.
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