Louis Dembitz Brandeis

BRANDEIS, LOUIS DEMBITZ

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, Jewishsponsored,
coeducational college in Waltham,
Massachusetts. The nonsectarian school offers
both undergraduate and graduate degrees.
FURTHER READINGS
Baskerville, Stephen W. 1994. Of Laws and Limitations: An
Intellectual Portrait of Louis Dembitz Brandeis. Rutherford:
Fairleigh Dickinson Univ. Press.
Bracey, Christopher A. 2001. “Louis Brandeis and the Race
Question.” Alabama Law Review 52 (spring): 859–910.
Goodhart, Arthur L. 2000. Five Jewish Lawyers of the Common
Law. Union, N.J.: Lawbook Exchange.
Schroeder, Mary Murphy. 2000. “The Brandeis Legacy.” San
Diego Law Review 37 (summer): 711–23.
Strum, Philippa S. 1999. “The Unlikely Radical: After a Violent
Strike Shattered Louis Brandeis’ Assumptions
About the Legal System, He Transformed His Practice
and Became the Country’s Most Influential Public
Interest Advocate.”American Lawyer 21 (December): 42.

CROSS-REFERENCES
Antitrust Law; “Brief for the Defendant in Error, Muller v. Oregon” (Appendix, Primary Document); Electronic Surveillance; Olmstead v. United States; Privacy;

Wiretapping.