Urofsky, Melvin I.

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The Journal of Appellate Practice and Process Volume 13 Issue 2 Article 5 2012 The Legacy of Louis D. Brandeis Melvin I. Urofsky Follow this and additional works at: https://lawrepository.ualr.edu/appellatepracticeprocess  Part of the Judges Commons, and the Legal Biography Commons Recommended Citation Melvin I. Urofsky, The Legacy of Louis D. Brandeis, 13 J. APP. PRAC. & PROCESS 189 (2012). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol13/iss2/5 This document is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in The Journal of Appellate Practice and Process by an authorized administrator of Bowen Law Repository: Scholarship & Archives. For more information, please contact mmserfass@ualr.edu. THE LEGACY OF LOUIS D. BRANDEISMelvin I. Urofsky*Few men in American history have had greater impact onso many different areas of our life than did Louis DembitzBrandeis (1856-1941). He was a successful and innovativelawyer at a time when the practice of law was changing; he tookhis legal acumen and applied it to reform, and showed futurereformers how they could defend new legislative ideas beforethe courts. Appointed to the United States Supreme Court in1916 by Woodrow Wilson, he was responsible for advances injurisprudence that include the bases for the modem doctrines offree speech and privacy. Finally, in his tenure as head of theAmerican Zionist movement he articulated a rationale thatcontinues to inform relations between Israel and AmericanJewry.THE LAWYERAfter study at the Harvard Law School and a short stint inSt. Louis, Brandeis joined his law school classmate Samuel D.Warren to open what was to become one of the most successfulfirms in Boston. Prior to the Civil War, lawyers usuallypracticed alone and had to be generalists, handling everythingfrom land deeds to wills to criminal matters and contracts.People usually did not go to see a lawyer until after an event hadhappened, such as "He said he would sell me a horse butdelivered a mule." By the 1870s, however, as Americanentrepreneurs built factories, mills, and railroads, it became tooexpensive to wait until after a problem occurred to call in a* Virginia Commonwealth University. I have not provided comprehensive citations tosupport the conclusions reached in this essay. Supporting references may be found in therelevant portions of Melvin I. Urofsky, Louis D. Brandeis: A Life (Pantheon 2009).Readers interested in sampling Brandeis's own words might also consult Brandeis onDemocracy (Philippa Strum ed., U. Press of Kan. 1995).THE JOURNAL OF APPELLATE PRACTICE AND PROCESS Vol. 13, No. 2 (Fall 2012)THE JOURNAL OF APPELLATE PRACTICE AND PROCESSlawyer. A businessman did not want to spend thousands ofdollars and then discover that he might be in violation of a law.So business owners began going to a lawyer before the fact,saying in effect "I want to do X. Is there a problem? If so, howcan we deal with it?"The most successful attorneys at this time were those whounderstood business, and could advise their clients not onlyabout the law but about business matters as well. Brandeis'sfather had been a successful wholesale grain distributor inLouisville, Kentucky, and from his early years Louis heard hisfather talk about business matters, and how problems could beresolved. In practice, whenever Brandeis took on a new client,he would go to that person's factory or store (the Filene Brotherswere one of his earliest clients) to see what they did and how thebusiness operated. He tried to learn as much about the client'sbusiness as possible. "Why should they come to me," he oncesaid, "unless I know as much if not more about their business asthey do?"A good example of this commitment to understanding hisclients' business is when the shoe manufacturer WilliamMcElwaine came to see Brandeis. A man who had worked hisway up from poverty, McElwaine took pride in the fact that hepaid his workers well and treated them fairly. Now there weresome rough times, and he needed to reduce wages. His workers,however, threatened to strike if he did. He asked Brandeis tolook into the matter.Brandeis went to the plant, spoke with the workers, anddiscovered that while they did indeed earn good wages whenthey worked, they only worked about thirty weeks a year. Orderscame in bunches, and when there were many orders the men didwell. But once orders fell off, the plants closed until new orderscame in. So while the men earned good wages when theyworked, if one averaged their earnings over fifty-two weeks itcame to very little.He then called McElwaine in and told him his workers hada legitimate complaint because of the irregularity of their work.McElwaine protested that that was always how the shoebusiness had been run. Brandeis then laid out a plan that wouldbring in orders on a more regular basis, thus providing the menwith almost a full year's employment. McElwaine agreed to try190A CENTURY BACK: BRANDEISit; the plan proved successful, and within a few years the entireshoe industry had adopted it.Although he himself was a generalist (his law partner saidthat he believed the only area Brandeis had never practiced inwas criminal law), he nonetheless recognized that clients weredemanding a higher level of expertise in multiple areas than oneperson could provide. In Boston Brandeis led the way increating the new law firm, one with multiple partners, each aspecialist in specific areas of the law. There is a certain irony inthis as Brandeis always opposed bigness, yet this innovationeventually grew into the modem law firm with branches aroundthe world and hundreds of lawyers in the practice, eachspecializing in a particular field.Brandeis prospered in his practice. In the 1890s, when mostlawyers in the country made $5,000.00 or less, he earned$50,000.00-at a time when there were no federal or stateincome taxes. Having done well, he now wanted to do good.THE REFORMERBrandeis lived during a time of great economic and socialtransformation, and as usual in such times, there were excessesthat created problems. While industrialization and urbanizationboth led to a higher standard of living for many people, theworkers in factories, mines, and mills were paid poorly andtreated horribly. Groups that are known collectively asProgressive reformers sought to ameliorate the worst aspects ofindustrialization through protective legislation, conservation,and laws aimed at reining in the powers of big business.Like most reformers, Brandeis started locally, which forhim meant local issues in Boston, and then went onto theMassachusetts and national stages. Aside from the fact that hehad great organizational powers-he is often credited withcreating the first citizens lobby-he believed that in order for areform to succeed, its proponents not only had to understand theproblem and what had caused it, but they had to propose aworkable solution. Perhaps his most famous accomplishment-he always thought it the most useful thing he had done-involved the creation of savings bank life insurance, in responseto the licensed thievery known as "industrial insurance" sold by191THE JOURNAL OF APPELLATE PRACTICE AND PROCESSthe big companies. Brandeis not only came up with the idea, heorganized a large citizens lobby to work for it, and personallysaw it through the legislature. Unlike some reformers, Brandeisdid not see politics as a dirty business. He believed that it washow the people, if properly educated, could choose andimplement forward-looking social and economic policies.Another area where he is given great credit is acting onbehalf of public interest groups, including agencies such as theInterstate Commerce Commission, without a fee. The notion ofpro bono publico-for the public good-was relativelyunknown at the time, and many people thought that Brandeishad some ulterior motive in not charging certain groups for hisservices. Now, of course, pro bono work is a part of every firm'sbusiness, something on which the legal profession prides itself.It was while doing pro bono work that Brandeis developeda unique legal brief, one that still bears his name. In Lochner v.New York,' the Supreme Court had struck down a New YorkState statute that limited the number of hours that bakeryworkers could put in during a day, on the grounds that such alaw did not meet the criteria of the state's police powerauthority, in that it did not protect the health, safety, or welfareof its citizens. When Brandeis agreed to defend an Oregon lawthat set maximum hours for women workers in certainindustries, he decided that he needed to show the court the factsof industrial life. His brief consisted of two pages of legalcitation, and over a hundred pages of excerpts from factory andmedical reports, government documents, and similar materials toprove that long hours of labor had a detrimental effect on thehealth of women. The justices unanimously agreed in Muller v.Oregon,2 and ever since then reform groups have submitted"Brandeis briefs" whenever they need to defend new andinnovative laws.In 1912 Brandeis met Woodrow Wilson, and played animportant role in the presidential campaign and afterwards. Thegreat biographer of Wilson, Arthur S. Link, called Brandeis the"intellectual architect" of the New Freedom. Where TheodoreRoosevelt wanted to regulate big business through thecountervailing power of big government, Brandeis proposed that1. 198 U.S. 45 (1905).2. 208 U.S. 412 (1908).192A CENTURY BACK: BRANDEISthe government set up fair rules of competition. To effect thisidea, Wilson proposed the Federal Reserve banking system, theClayton Antitrust Act, and a bill creating the Federal TradeCommission. Brandeis had an important role in the drafting ofeach of these measures.THE ZIONISTEven while he was engaged in reforms in both Boston andWashington, Brandeis became interested in Zionism, themovement to create a Jewish homeland in Palestine. There hasbeen a great deal of speculation about why an assimilated publicfigure who had no connections to organized religion wouldsuddenly become so involved. Some have speculated that it wasbecause of his uncle, Lewis Dembitz, the only Jewishlyobservant member of his family, who was an early supporter. Ithink it had more to do with Brandeis's idealism. He believedthat in Palestine one could create the small-unit society that theUnited States had once been, a society without the curse ofbigness: no big industry, no big government, but a democracythat would be close to and responsive to the people.Most of the three million Jewish immigrants who came tothe United States from Russia and eastern Europe after 1880 hadno desire to live in Palestine; they wanted to become Americans.What Brandeis had to do once he accepted leadership of themovement in 1914 was two-fold. He had to create anorganizational apparatus that would be able to help the yishuv-the Jewish settlement in Palestine-and influence the Americangovernment to adopt policies in favor of a Jewish homeland, andhe also had to come up with an ideological program that made itpossible for these immigrant Jews to be good Americans as wellas Zionists.He solved the first problem by relying on what he hadlearned about organization in his Progressive reforms, andbrought in like-minded and capable lieutenants such as StephenWise, Felix Frankfurter, and Julian Mack. From a loose coalitionof different groups that in 1914 numbered less than 12,000members, Brandeis created the Zionist Organization of Americathat in 1918 boasted 180,000 men and women. The ZOA playeda leading role in providing relief to Jews in war-torn Europe as193THE JOURNAL OF APPELLATE PRACTICE AND PROCESSwell as Palestine, and perhaps even more importantly, helped toinfluence Woodrow Wilson to endorse the British BalfourDeclaration, announcing that there would be a Jewish homelandin Palestine after the war.Ideologically, Brandeis argued that the basic tenets ofJudaism and Americanism were one and the same-democracy,individual freedom, and social justice-and these were theideals of the Zionist movement. Brandeis looked not to thepriestly part of Judaism, the various rules and regulations, but tothe prophets, who declared that God wanted justice for theoppressed. He then made the following leap of faith-for Jewsto be good Americans, they had to be good Jews, and to be goodJews, they had to become Zionists.Brandeis, who always admired idealism, saw the Jewishsettlement in Palestine in idealistic terms, especially after a visitthere in 1919, and he imbued American Zionism with this sameview. This has been both a strength and weakness of Americansupport for Israel-the pride and admiration of what Israelishave done in the desert, but also an inability to fully understandwhy Israel at times must act in a less than idealistic way.THE JUDGEIn January 1916 Brandeis gave a talk to the Chicago barentitled "The Living Law" in which he declared that judgesneeded to know not just the law, but the facts of economic life.They had to evaluate measures that came before them not insome abstract manner, but in light of the very real social andeconomic conditions facing the people that the legislature hadtried to ameliorate. Much of the antagonism against thejudiciary, he declared, grew out of the fact that judges hadopposed common-sense reform measures without anyunderstanding of their purpose.A few weeks later, Woodrow Wilson named Brandeis tothe Supreme Court, a move that triggered the longest and one ofthe most bitter confirmation fights in American history. Whilesome of the opposition may have resulted from his being thefirst Jew to be named to the high court, conservatives ralliedagainst him because they believed him to be a radical, one whohad no respect for big business and believed that the courts had194A CENTURY BACK: BRANDEISother functions than to protect private property. By thisdefinition, Brandeis could certainly be considered radical,although he always saw himself as a conservative. Finally, inJune 1916, after Wilson invoked party discipline, the Senateconfirmed the nomination.Once on the Court Brandeis quickly allied himself withOliver Wendell Holmes, Jr., against the dominant conservativemajority. During the 1920s liberals applauded when they sawthat a decision had come down with "Holmes and Brandeisdissenting." But the two men had very different rationales fortheir actions. Holmes had no use for reform measures, but hebelieved that unless there was a clear constitutional prohibition,legislatures could enact whatever they wanted, no matter howill-considered he thought they might be. Brandeis, on the otherhand, did believe in reform, and he would support programs thathe personally disagreed with, because he believed the people'srepresentatives should be encouraged to experiment in trying tosolve problems.The two great legacies of Brandeis's tenure on the Courtare certainly his ideas concerning free speech and privacy, and itis not too much to say that he laid down the bases for today'sjurisprudence in those areas.Modem free speech jurisprudence begins with the caseschallenging the Wilson Administration's Sedition Act in 1919.In the first case, Schenck v. United States,3 Brandeis joinedHolmes's opinion that in wartime speech could be suppressed ifit provided a clear and present danger to a governmental interest.This actually was an improvement over the older Blackstoniannotion that speech with a bad tendency could be punished.Brandeis later said that at the time he "thought at the problem,not through it." Both he and Holmes changed their minds soonafter Schenck, and in Abrams v. United States,4 Holmesarticulated a more speech-protective position, arguing that ideasshould be freely disseminated to see which ones could win outin the market of ideas. While this certainly fit in with Holmes'sphilosophical bent, it provided little guidance for lower-courtjudges, and did not explain the relationship of the First3. 249 U.S. 47 (1919).4. 250 U.S. 616 (1919).195THE JOURNAL OF APPELLATE PRAcTICE AND PROCESSAmendment's protection of free expression to a constitutionaldemocracy.Brandeis made that link in his celebrated concurrence(joined by Holmes) in Whitney v. California.5 He alwaysbelieved that in a democracy the most important position wasthat of "citizen." But in order for a person to enjoy the benefitsof a free society, he or she had to meet certain responsibilities.These civic obligations involved making informed decisions onmatters of public policy, by participating in governmentalactions (such as testifying at legislative hearings), and by voting.But in order for a voter to make an informed judgment on acandidate or a program, he or she had to have information, andthis meant information on all sides of an issue. Unpopularopinions, no matter how radical, could not be silenced, becausethe informed citizen needed to know those views, to evaluatethem, and then either accept or reject them. Free speech did notexist just so political philosophers could debate, but to educatecitizens so they could make informed decisions on policies andcandidates. It is this interpretation of the First Amendment'sSpeech Clause that underlies today's speech-protectivejurisprudence.Brandeis first became interested in privacy when he was alawyer, and his partner Sam Warren complained of the presscovering his and his family's social life. Warren and Brandeiswrote an article on privacy that appeared in an 1890 issue of theHarvard Law Review,6 and it helped to shape the private law ofprivacy for the next sixty years. (It was, until 1946, the mostcited law review article in history.) With that article asbackground, Brandeis argued, in Olmstead v. United States,7 thatthere was a constitutional right to privacy-the right, as he putit, to be left alone.Roy Olmstead had been convicted of bootlegging throughevidence secured by a warrantless tap on his phones. He claimedthis violated his Fourth Amendment rights, but a majority of theCourt said since there had been no physical intrusion into thehouse, there had been no violation of his rights. Brandeis wrote5. 274 U.S. 357 (1927).6. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193(1890).7. 277 U.S. 438 (1928).196A CENTURY BACK: BRANDEISone of his most famous dissents in this case, arguing that (1) aphone tap did violate the Fourth Amendment, since the Framershad intended that people should be secure in their houses fromany form of search without a warrant, and (2) the Constitutionguaranteed a right to privacy, the right, he declared, most prizedby civilized people. On both instances Brandeis's viewprevailed. Congress excluded evidence secured by a warrantlesstap in federal prosecutions, and the Court in the 1960s extendedthis coverage to the states. In a decision that completelyvindicated Brandeis's views, Justice Potter Stewart noted thatthe Fourth Amendment protects people, not places.The acceptance of a constitutional right to privacy tooklonger to be accepted. Some judges and scholars believed thatsince the word "privacy" is not specifically mentioned in theConstitution, the right does not exist. Even so, in 1965 the Courtbegan to embrace the idea in the landmark decision of Griswoldv. Connecticut, and since then the notion had become part ofour constitutional jurisprudence.In every poll of historians and legal scholars that "ranks"the justices, the top three choices are almost always the same-first, of course, is the great chief justice, John Marshall,followed by Holmes and Brandeis. It is a position that Brandeismost surely deserves.8. 381 U.S. 479 (1965).197

The Legacy of Louis D. Brandeis

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The Legacy of Louis D. Brandeis

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