Louis Brandeis - Wikipedia

On November 13, 1856, Louis Brandeis, American lawyer and Associate Justice on the Supreme Court of the United States, was born in Louisville, Kentucky (d. 1941). From the article:

Louis Dembitz Brandeis (/ˈbrændaɪs/; November 13, 1856 – October 5, 1941) was an American lawyer and associate justice on the Supreme Court of the United States from 1916 to 1939. He was born in Louisville, Kentucky, to Jewish immigrant parents from Bohemia (now in the Czech Republic), who raised him in a secular home. He attended Harvard Law School, graduating at the age of 20 with what is widely rumored to be the highest grade average in the law school's history. Brandeis settled in Boston, where he founded a law firm (that is still in practice today as Nutter McClennen & Fish) and became a recognized lawyer through his work on progressive social causes.

Starting in 1890, he helped develop the "right to privacy" concept by writing a Harvard Law Review article of that title, and was thereby credited by legal scholar Roscoe Pound as having accomplished "nothing less than adding a chapter to our law". He later published a book entitled Other People's Money and How the Bankers Use It, suggesting ways of curbing the power of large banks and money trusts. He fought against powerful corporations, monopolies, public corruption, and mass consumerism, all of which he felt were detrimental to American values and culture. He also became active in the Zionist movement, seeing it as a solution to antisemitism in Europe and Russia, while at the same time being a way to "revive the Jewish spirit."

When his family's finances became secure, he began devoting most of his time to public causes and was later dubbed the "People's Lawyer". He insisted on serving on cases without pay so that he would be free to address the wider issues involved. The Economist magazine calls him "A Robin Hood of the law." Among his notable early cases were actions fighting railroad monopolies, defending workplace and labor laws, helping create the Federal Reserve System, and presenting ideas for the new Federal Trade Commission. He achieved recognition by submitting a case brief, later called the "Brandeis Brief," which relied on expert testimony from people in other professions to support his case, thereby setting a new precedent in evidence presentation.

In 1916, President Woodrow Wilson nominated Brandeis to become a member of the Supreme Court. His nomination was bitterly contested, partly because, as Justice William O. Douglas wrote, "Brandeis was a militant crusader for social justice whoever his opponent might be. He was dangerous not only because of his brilliance, his arithmetic, his courage. He was dangerous because he was incorruptible... [and] the fears of the Establishment were greater because Brandeis was the first Jew to be named to the Court." On June 1, 1916, he was confirmed by the Senate by a vote of 47 to 22, to become one of the most famous and influential figures ever to serve on the high court. His opinions were, according to legal scholars, some of the "greatest defenses" of freedom of speech and the right to privacy ever written by a member of the Supreme Court.

Louis Dembitz Brandeis was born on November 13, 1856, in Louisville, Kentucky, the youngest of four children. His parents, Adolph Brandeis and Frederika Dembitz, both of whom were Ashkenazi Jews, immigrated to the United States from their childhood homes in Prague, Bohemia (then part of the Austrian Empire). They emigrated as part of their extended families for both economic and political reasons. The Revolutions of 1848 had produced a series of political upheavals and the families, though politically liberal and sympathetic to the rebels, were shocked by the antisemitic riots that erupted in Prague while the rebels controlled it.[3]:55 In addition, the Habsburg Empire had imposed business taxes on Jews. Family elders sent Adolph Brandeis to America to observe and prepare for his family's possible emigration. He spent a few months in the Midwest and was impressed by the nation's institutions and by the tolerance among the people he met. He wrote home to his wife, "America's progress is the triumph of the rights of man."[3]:56 His parents were followers of Eve Frank, a mystic cult leader and daughter of Jacob Frank.[4]

The Brandeis family chose to settle in Louisville partly because it was a prosperous river port. His earliest childhood was shaped by the American Civil War, which forced the family to seek safety temporarily in Indiana. The Brandeis family held abolitionist beliefs that angered their Louisville neighbors.[3]:57 Louis's father developed a grain-merchandising business. Worries about the U.S. economy took the family to Europe in 1872, but they returned in 1875.[5]:121

The Brandeises were considered a "cultured family", trying not to discuss business or money during dinner, preferring subjects related to history, politics, and culture, or their daily experiences. Having been raised partly on German culture, Louis read and appreciated the writings of Goethe and Schiller, and his favorite composers were Beethoven and Schumann.[3]

In their religious beliefs, although his family was Jewish, only his extended family practiced a more conservative form of Judaism, while his parents practiced a more relaxed form. They celebrated the main Christian holidays along with most of their community,[5] treating Christmas as a secular holiday. His parents raised their children to be "high-minded idealists" rather than depending solely on religion for their purpose and inspiration.[3] In later years, his mother, Frederika, wrote of this period:

I believe that only goodness and truth and conduct that is humane and self-sacrificing toward those who need us can bring God nearer to us ... I wanted to give my children the purest spirit and the highest ideals as to morals and love. God has blessed my endeavors.[6]:28

According to biographer Melvin Urofsky, Brandeis was influenced greatly by his uncle Lewis Naphtali Dembitz. Unlike other members of the extended Brandeis family, Dembitz regularly practiced Judaism and was actively involved in Zionist activities. Brandeis later changed his middle name from David to Dembitz in honor of his uncle, and through his uncle's model of social activism, became an active member of the Zionist movement later in his life.[7]:18

Louis grew up in "a family enamored with books, music, and politics, perhaps best typified by his revered uncle, Lewis Dembitz, a refined, educated man who served as a delegate to the Republican convention in 1860 that nominated Abraham Lincoln for president."[5]

In school, Louis was a serious student in languages and other basic courses and usually achieved top scores. Brandeis graduated from the Louisville Male High School at age 14 with the highest honors. When he was 16, the Louisville University of the Public Schools awarded him a gold medal for "excellence in all his studies."[8]:10 Anticipating an economic downturn, Adolph Brandeis relocated the family to Europe in 1872. After a period spent traveling, Louis spent two years studying at the Annenschule [de] in Dresden, Saxony, where he excelled. He later credited his capacity for critical thinking and his desire to study law in the United States to his time there.[5]

Returning to the U.S. in 1875, Brandeis entered Harvard Law School at the age of 18. His admiration for the wide learning and debating skills of his uncle, Lewis Dembitz, inspired him to study law.[3]:58 Despite the fact that he entered the school without any financial help from his family, he became "an extraordinary student".[5]

During his time at Harvard, the teaching of law was undergoing a change of method from the traditional, memorization-reliant, "black-letter" case law, to a more flexible and interactive Socratic method, using prior cases as the basis for discussion to instruct students in legal reasoning. Brandeis easily adapted to the new methods, soon became active in class discussions,[3] and joined the Pow-Wow club, similar to today's moot courts in law school, which gave him experience in the role of a judge.[5]:122

In a letter while at Harvard, he wrote of his "desperate longing for more law" and of the "almost ridiculous pleasure which the discovery or invention of a legal theory gives me." He referred to the law as his "mistress," holding a grip on him that he could not break.[9]

Unfortunately, his eyesight began failing as a result of the large volume of required reading and the poor visibility under gaslights. The school doctors suggested he give up school entirely. He found another alternative: paying fellow law students to read the textbooks aloud, while he tried to memorize the legal principles. Despite the difficulties, his academic work and memorization talents were so impressive that he graduated as valedictorian and achieved the highest grade point average in the history of the school,[5]:122 a record that stood for eight decades.[3] Brandeis said of that period: "Those years were among the happiest of my life. I worked! For me, the world's center was Cambridge."[6]:47

After graduation, he stayed on at Harvard for another year, where he continued to study law on his own while also earning a small income by tutoring other law students. In 1878, he was admitted to the Missouri bar[10] and accepted a job with a law firm in St. Louis, where he filed his first brief and published his first law review article.[3] After seven months, he tired of the minor casework and accepted an offer by his Harvard classmate, Samuel D. Warren, to set up a law firm in Boston. They were close friends at Harvard where Warren ranked second in the class to Brandeis's first. Warren was also the son of a wealthy Boston family and their new firm was able to benefit from his family's connections.[3]:59

Soon after returning to Boston, while waiting for the law firm to gain clients, he was appointed law clerk to Horace Gray, the chief justice of the Massachusetts Supreme Court, where he worked for two years. He was admitted to the Massachusetts bar without taking an examination, which he later wrote to his brother, was "contrary to all principle and precedent." According to Klebanow and Jonas, "the speed with which he was admitted probably was due to his high standing with his former professors at Harvard Law, as well as to the influence of Chief Justice Gray."[3]:59

The new firm was eventually successful, having gained new clients from within the state and in several neighboring states, as well. Their former professors referred a number of clients to the firm,[3] garnering Brandeis more financial security and eventually the freedom to take an active role in progressive causes.

As partner in his law firm, he worked as a consultant and advisor to businesses, but also as a litigator who enjoyed courtroom challenges. In a letter to his brother, he writes, "There is a certain joy in the exhaustion and backache of a long trial which shorter skirmishes cannot afford."[3] On November 6, 1889, he argued for the first time before the U.S. Supreme Court as the Eastern counsel of the Wisconsin Central Railroad and won. Soon after, Chief Justice Melville Fuller recommended him to a friend as the best attorney he knew of in the Eastern U.S.[11]

Before taking on business clients, he insisted they agree to two major conditions: that he would only deal with the person in charge, and never intermediaries; and he could be allowed to advise on any relevant aspects of the firm's affairs.

He preferred being an adviser and counselor, rather than simply a strategist in lawsuits, which would allow him to advise his clients on how to avoid problems, such as lawsuits, strikes, or other crises.[3] Brandeis explained: "I would rather have clients than be somebody's lawyer."[6]:86 In a note found among his papers, he reminded himself to "advise client on what he should have, not what he wants."[6]:20

Brandeis describes how he saw himself as an advisor:

Of course there is an immense amount of litigation going on and a great deal of the time of many lawyers is devoted to litigation. But by far the greater part of the work done by lawyers is not done in court at all, but in advising men in important matters, and mainly in business affairs....So, some of the ablest American lawyers of this generation, after acting as professional advisers of great corporations, became finally their managers.[12]

Brandeis was unusual among lawyers since he always turned away cases he considered bad. If he believed a client to be in the wrong, he would persuade his clients to make amends, otherwise he would withdraw from the case.[3] Once, uncertain as to the rightness of his client's case, he wrote the client, "The position that I should take if I remained in the case would be to give everybody a square deal."[6]:233

Brandeis and Warren's firm has been in continuous practice in Boston since its founding in 1879; the firm is known as Nutter McClennen & Fish.

Brandeis defined modern notions of the individual right to privacy in a path-breaking article he published with his partner, Warren, in the Harvard Law Review of December 15, 1890, on "The Right to Privacy." Stimulated by anger at offensive publicity concerning the social activities of Warren's family, it suggested a new legal concept that has had lasting influence. Building on diverse analogies in the law of defamation, of literary property, and of eavesdropping, Brandeis argued that the central, if unarticulated, interest protected in these fields was an interest in personal integrity, "the right to be let alone," that ought to be secured against invasion except for some compelling reason of public welfare. Brandeis saw emotions as a positive expression of human nature, and so desired privacy protection for them as protection against repression of the human spirit.[13]

Between 1888 and 1890, Brandeis and his law partner, Samuel Warren, wrote three scholarly articles published in the Harvard Law Review. The third, "The Right to Privacy," was the most important, with legal scholar Roscoe Pound saying it accomplished "nothing less than adding a chapter to our law."[14]

Brandeis and Warren discussed "snapshot photography," a recent innovation in journalism, that allowed newspapers to publish photographs and statements of individuals without obtaining their consent. They argued that private individuals were being continually injured and that the practice weakened the "moral standards of society as a whole."[3]:61[15] They wrote:[15]

That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society.

The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry, as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers....The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.

Legal historian Wayne McIntosh wrote that "the privacy tort of Brandeis and Warren set the nation on a legal trajectory of such profound magnitude that it finally transcended its humble beginnings."[16]:24 State courts and legislatures quickly drew on Brandeis and Warren's work. In 1905 the Georgia Supreme Court recognized a right to privacy in a case involving photographs[clarification needed]. By 1909, California, New York, Pennsylvania, Virginia, and Utah had passed statutes establishing the right. In 1939 the American Law Institute's Restatement of Torts also recognized a right to privacy at common law. Years later, after becoming a justice of the Supreme Court, Brandeis discussed the right to privacy in his famous dissent in Olmstead v. United States.

In 1890, Brandeis became engaged to his second cousin Alice Goldmark, of New York. He was then 34 years of age and had previously found little time for courtship. Alice was the daughter of Joseph Goldmark, a physician, the brother of the composer Karl Goldmark, who had emigrated to America from Austria-Hungary after the collapse of the Revolution of 1848. They were married on March 23, 1891, at the home of her parents in New York City in a civil ceremony. The newlywed couple moved into a modest home in Boston's Beacon Hill district and had two daughters, Susan Brandeis Gilbert, born in 1893, and Elizabeth Brandeis Rauschenbush, born in 1896.[6]:72–78

Alice supported her husband's resolve to devote most of his time to public causes. The Brandeis family "lived well but without extravagance."[3]:63 With the continuing success of his law practice, they later purchased a vacation house in Dedham, where they would spend many of their weekends and summer vacations. Unexpectedly, his wife's health soon became frail, and so in addition to his professional duties, he found it necessary to manage the family's domestic affairs.[5]

They shunned the more luxurious ways of their class, holding few formal dinner parties and avoiding the luxury hotels when they traveled. Brandeis would never fit the stereotype of the wealthy man. Although he belonged to a polo club, he never played polo. He owned no yacht, just a canoe that he would paddle by himself on the fast-flowing river that adjoined his cottage in Dedham.[8]:45–49 He wrote to his brother of his brief trips to Dedham: "Dedham is a spring of eternal youth for me. I feel newly made and ready to deny the existence of these gray hairs.[17]

Using his social conscience, Brandeis became a leader of the Progressive movement, and used the law as the instrument for social change. From 1897 to 1916, he was in the thick of multiple reform crusades. He fought in Boston to secure honest traction franchises and in 1907 launched a six-year fight to prevent banker J. P. Morgan from monopolizing New England's railroads. After an exposé of insurance fraud in 1906, he devised the Massachusetts plan to protect small wage-earners through savings bank life insurance. He supported the conservation movement, and in 1910 emerged as the chief figure in the Pinchot-Ballinger investigation.[18]

We may have democracy, or we may have wealth concentrated in the hands of a few, but we can't have both.[19]

In 1889, Brandeis entered a new phase in his legal career when his partner, Samuel Warren, withdrew from their partnership to take over his recently deceased father's paper company. He then took on cases with the help of colleagues, two of whom became partners in his new firm, Brandeis, Dunbar, and Nutter, in 1897.[6]:82–86

He won his first important victory in 1891, when he persuaded the Massachusetts legislature to make the liquor laws less restrictive and thereby more reasonable and enforceable. He suggested a viable "middle course." By moderating the existing regulations, he told the lawmakers that they would remove liquor dealers' incentive to violate or corrupt the laws. The legislature was won over by his arguments and changed the regulations.[11]:34–37

Brandeis wrote that "the law has everywhere a tendency to lag behind the facts of life." He chipped away at assumptions that legal principles should never be changed. He worked to break the traditional hold on legal thinking to make laws that met the needs of the changing community.[20]

In one of his first such cases, in 1894, he represented Alice N. Lincoln, a Boston philanthropist and noted crusader for the poor. He appeared at public hearings to promote investigations into conditions in the public poor-houses. Lincoln, who had visited these poor-houses for years, saw inmates dwelling in misery and the temporarily unemployed thrown in together with the mentally ill and hardened criminals.[3] Brandeis spent nine months and held fifty-seven public hearings, at one such hearing proclaiming, "Men are not bad. Men are degraded largely by circumstances....It is the duty of every man...to help them up and let them feel that there is some hope for them in life." As a result of the hearings, the board of aldermen decreed that the administration of the poor law would be completely reorganized.[11]:52–54

In 1896, he was asked to lead the fight against a Boston transit company which was trying to gain concessions from the state legislature that would have given it control over the city's emerging subway system. Brandeis prevailed and the legislature enacted his bill.[8]:57–61

The transit franchise struggle revealed that many of Boston's politicians had placed political friends on the payrolls of the private transit companies. One alderman gave jobs to 200 of his followers. In Boston and other cities, such abuses were part of the corruption in which graft and bribery were commonplace, in some cases even newly freed prison felons resumed their political careers.[11]:70 "Always the moralist," writes biographer Thomas Mason, "Brandeis declared that 'misgovernment in Boston had reached the danger point.'" He declared that from then on he would keep a record of good and bad political deeds which would be open to all Boston voters.[6] In one of his public addresses in 1903, he stated his goal:

We want a government that will represent the laboring man, the professional man, the businessman, and the man of leisure. We want a good government, not because it is good business but because it is dishonorable to submit to a bad government. The great name, the glory of Boston, is in our keeping.[6]:121

In 1906, Brandeis won a modest victory when the state legislature enacted a measure he drafted designed to make it a punishable crime for a public official to solicit a job from a regulated public utility or for an officer of such a company to offer such favors.[6]:121

His anti-corruption philosophy was included in his closing argument for the Glavis-Ballinger case of 1910, where he stated that the public servant "cannot be worthy of the respect and admiration of the people unless they add to the virtue of obedience some other virtues—the virtues of manliness, of truth, of courage, of willingness to risk positions, of the willingness to risk criticism, of the willingness to risk the misunderstanding that so often comes when people do the heroic thing."[21]:251

Brandeis was becoming increasingly conscious of and hostile to powerful corporations and the trend toward bigness in American industry and finance. He argued that great size conflicted with efficiency and added a new dimension to the Efficiency Movement of the Progressive Era. As early as 1895 he had pointed out the harm that giant corporations could do to competitors, customers, and their own workers. The growth of industrialization was creating mammoth companies which he felt threatened the well-being of millions of Americans.[3]:76 Although the Sherman Anti-Trust Act was enacted in 1890, it was not until the 20th century that there was any major effort to apply it.

By 1910 Brandeis noticed that even America's leadership, including President Theodore Roosevelt, were beginning to question the value of antitrust policies. Some business experts felt that nothing could prevent the concentration of industry and therefore big business was here to stay.[3]:76 As a result, leaders like Roosevelt began to "regulate," but not limit, the growth and operation of corporate monopolies, although Brandeis wanted the trend to bigness slowed or even reversed. He was convinced that monopolies and trusts were "neither inevitable nor desirable."[3] In support of Brandeis's position were presidential candidate William Jennings Bryan and Robert M. La Follette Sr., senator from Wisconsin.[3]

Brandeis furthermore denied that large trusts were more efficient than the smaller firms which were driven out of business. He argued the opposite was often true, that monopolistic enterprises became "less innovative" because, he wrote, their "secure positions freed them from the necessity which has always been the mother of invention."

He explained that there was no way an executive could learn all the details of running a huge and unwieldy company. "There is a limit to what one man can do well," he wrote. Brandeis was aware of economies of scale and the initially lower prices offered by growing companies, but he noted that once a large company drove out its competition, "the quality of its products tended to decline while the prices charged for them tended to go up." Those companies would become "clumsy dinosaurs, which, if they ever had to face real competition, would collapse of their own weight." In an address to the Economic Club of New York in 1912, he said:

We learned long ago that liberty could be preserved only by limiting in some way the freedom of action of individuals; that otherwise liberty would necessarily yield to absolutism; and in the same way we have learned that unless there be regulation of competition, its excesses will lead to the destruction of competition, and monopoly will take its place.[22]

Brandeis was being called "the people's lawyer."[3]:66 He no longer accepted payment for "public interest" cases even when they required pleadings before judges, legislative committees, or administrative agencies. He began to give his opinion by writing magazine articles, making speeches, or helping form interest groups. He insisted on serving without pay so that he could freely address the wider issues involved beyond the case at hand.[3]:66

In an address to Harvard law students, he suggested that they should try to serve the people:

Instead of holding a position of independence, between the wealthy and the people, prepared to curb the excesses of either, able lawyers have, to a large extent, allowed themselves to become adjuncts of great corporations and have neglected the obligation to use their powers for the protection of the people. We hear much of the "corporation lawyer," and far too little of the "people's lawyer." The great opportunity of the American Bar is and will be to stand again as it did in the past, ready to protect also the interests of the people."[23]