HomeConstitutional LawLegal HistoryLegal EthicsEvidenceProfessional ResponsibilityContact MeSearch

   

Supreme Court Justices

Louis D. Brandeis (1856-1941)

One of the most celebrated Justices in the history of the Supreme Court, Louis Dembitz Brandeis was born in Louisville, Kentucky in November 1856. Brandeis's father Adolf emigrated from Bohemia (now Germany) to the United States in 1848, the year of European revolutions. Brandeis's mother Frederika, at that time Adolf's fiance, emigrated shortly thereafter. At age 19, Brandeis entered Harvard Law School. Harvard was radically changing the form and content of legal education, in large part through the Dean Christopher Columbus Langdell's belief that law was a "science," and because a science, students should be taught cases through the Socratic method. This radical approach had not succeeded when Brandeis entered Harvard; indeed, it might have been considered a failure at that time. Brandeis, however, greatly enjoyed his time at Harvard Law School, even spending an extra (third) year there pursuing graduate law work. After law school, Brandeis began practicing law in St. Louis, but returned within a year to Boston, where he practiced law with his classmate Samuel Warren.

Brandeis was an extraordinarily successful lawyer. As a frugal spender and successful investor (in bonds, not stocks), he was also able to achieve financial independence at a relatively young age, which allowed him a great deal of autonomy from his clients in the practice of law. Brandeis's financial independence meant his intellectual and political independence. Brandeis was a reformer who was interested in freeing government from corruption, making democratic government a reality, and using the law to protect the powerless from the powerful. Beginning in the 1890s, Brandeis used his knowledge of law to represent the public interest in a number of controversial cases. He often did so without any compensation. In 1907, Brandeis's sister-in-law Josephine Goldmark, along with Florence Kelley, head of the National Consumers' League, met with Brandeis to ask him to defend Oregon's maximum hour law for women. Two years earlier, in Lochner v. New York, the Court had held that a maximum hour law in the bakery industry was unconstitutional as violative of the due process clause of the Fourteenth Amendment. Brandeis agreed to defend Oregon's law, and produced what is now called a "Brandeis brief." The brief consisted of a couple of pages stating the test of the law's constitutionality. The remainder of the brief, over 100 pages, consisted of data supporting the legislature's conclusion that the law was constitutional because it was a "reasonable" regulation. In early 1908, a unanimous Court upheld the Oregon law in Muller v. Oregon, although it did so by focusing on the limitation of the law to the protection of women from overzealous employers.

In addition to his legal reform work, Brandeis was a committed Zionist. Zionism was the effort to create a Jewish state in Palestine. Brandeis was not a religiously observant Jew, but believed deeply in the cause of Zionism, and is considered one of the most important leaders in the history of Zionism.

In 1916, Brandeis was nominated to the Supreme Court by Democratic President Woodrow Wilson. Brandeis was the first Jew to be nominated to the Court. His nomination was quite controversial. Beginning in February 1916, a five-man subcommittee of the Senate Judiciary Committee heard testimony concerning Brandeis's "fitness" to the office of Associate Justice. For example, former President William Howard Taft signed a letter along with six former presidents of the American Bar Association urging rejection of Brandeis's nomination on grounds that Brandeis was unfit. The president of Harvard University joined a letter adopted by other Boston Brahmins urging rejection of the nomination. At this time, the nominee himself did not testify, so Brandeis was heard only through the testimony of others. In early April, the subcommittee voted 3-2 to approve the nomination, splitting on party lines. In late May, after substantial politicking by the Wilson Administration, Brandeis's nomination was forwarded to the Senate by the Judiciary Committee, again by a party line vote of 10-8. On June 1, by a vote of 47-22, Brandeis was confirmed by the Senate. He was 59 years old. 

Brandeis remained on the Court for nearly 23 years, retiring in early 1939. He remained a reformer. His constitutional outlook was progressive, anti-monopolist and anti-big business, in favor of small government and of state experimentation. His dissents during much of his tenure in the Court endeared him to progressives, and later, New Deal liberals upset with the reactionary opinions of the Court during this time. Although they differed greatly in their philosophical views, Brandeis's dissents were paired with those of fellow dissenter Oliver Wendell Holmes.

In March 1891, Brandeis married Alice Goldmark, with whom he had two daughters, Susan Gilbert and Elizabeth Rauschenbusch. He died on October 5, 1941.

Further reading: Alpheus T. Mason, Brandeis: A Free Man's Life (1946); Melvin I. Urofsky, Louis D. Brandeis and the Progressive Tradition (1981); Bruce A. Murphy, The Brandeis/Frankfurter Connection (1982); Leonard Baker, Brandeis and Frankfurter: A Dual Biography (1984); Robert A. Burt, Two Jewish Justices: Outcasts in the Promised Land (1988);  Philippa Strum, Brandeis: Beyond Progressivism (1993); Edward A. Purcell, Jr., Brandeis and the Progressive Constitution (2000).