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Louis Brandeis

[bran-dahys]
Louis Dembitz Brandeis (November 13, 1856October 5, 1941) was an American litigator, Supreme Court Justice, advocate of privacy, and developer of the Brandeis Brief in Muller v. Oregon. In addition, he helped lead the American Zionist movement.

Justice Brandeis was appointed by Woodrow Wilson to the Supreme Court of the United States in 1916 (sworn-in on June 5), and served until 1939. Many were surprised that Wilson, the son of a Christian minister, would appoint to the highest court in the land the first Jewish Supreme Court Justice in United States history.

Besides his educational record, Brandeis had for some years been a contributor to the progressive wing of the United States Democratic Party, and had published a noted book in support of competition rather than monopoly in business. President Wilson, who believed deeply that government must be a moral force for good, responded to similar sentiments in the thought and writings of Brandeis.

Brandeis University, a private university founded in 1948 and located in Waltham, Massachusetts, was named after him.

The University of Louisville's law school, where Brandeis is buried, is named for him (the Louis D. Brandeis School of Law), and his papers are archived in the school's library. In 2006, Louisville celebrated the 150th anniversary of Brandeis's birth. In celebration, a three-story tall canvas portrait of Brandeis adorns an office building on Liberty Street in Louisville.

He was the brother-in-law of Charles Nagel, the last United States Secretary of Commerce and Labor.

Early life

Brandeis was born in Louisville, Kentucky in 1856. His family had immigrated to the United States from Prague following the failed revolution of 1848, settling in Louisville, where they soon developed a prosperous grain-merchandising business (though they suffered setbacks during the Long Depression of the 1870s).

Brandeis graduated from the Louisville Male High School at age 14 with the highest honors. In 1872, in the midst of the Long Depression, Brandeis' family returned to Europe: after a period spent travelling with his family, he studied for two years at the Realgymnasium Annenschule in Dresden. Returning to the US in 1875, Brandeis entered Harvard Law School, graduating in 1877 not only at the head of his class but with the highest marks of any student to have attended the law school.

He was admitted to the bar at the Old Court House in St. Louis, Missouri in 1878 where practiced law briefly before returning to Boston, and, with his Harvard Law School classmate Samuel D. Warren (the son of a wealthy and well-connected Boston family) founded the law firm now known as Nutter McClennen & Fish. The firm was able to take advantage of Warren's connections, while at the same time catering to prominent Jewish wholesalers. The firm was successful, garnering Brandeis financial security and allowing him to take an active role in progressive causes. He bought a house with his wife on Village Avenue in Dedham, Massachusetts in 1900. The house was near Dedham Square and the courthouse where Nicola Sacco and Bartolomeo Vanzetti were tried. According to records at the Dedham Historical Society, during the trial Mrs. Sacco stayed in the Brandeis home, which was being leased, while he was in Washington.

Brandeis was a member of the Dedham Country and Polo Club and the Dedham Historical Society as well as a member of the Society in Dedham for Apprehending Horse Thieves. He wrote to his brother of the town saying: "Dedham is a spring of eternal youth for me. I feel newly made and ready to deny the existence of these grey hairs."

The Brandeis Brief

In the 1908 Supreme Court case Muller v. Oregon, Brandeis, acting as a litigator, submitted a legal brief containing empirical data collected from hundreds of sources. In what became known as the "Brandeis Brief," he provided the Court with sociological information on the issue of the impact of long working hours on women. This was the first instance in the United States that social science had been used in law and changed the direction of the Supreme Court and of U.S. law. The Brandeis Brief became the model for future Supreme Court presentations.

Brandeis was always a staunch critic of controlled economies, which he considered inefficient and dangerous to American values. As a liberal Supreme Court justice in the New Deal era, Brandeis and a band of prominent admirers, including Felix Frankfurter, argued that central planning was inimical to American values and interests.

But many New Deal liberals disagreed. They favored central planning and wanted Washington to dictate to a few large corporations rather than thousands of small ones. Brain Truster Raymond Moley, for example, ridiculed the Brandeisian notion that "America could once more become a nation of small proprietors, of corner grocers and smithies under spreading chestnut trees." In the end, the Brandeis view lost ground and central planners played major roles in the New Deal.

Supreme Court Justice

Overcoming significant opposition to his appointment (notably from ex-President William Howard Taft and the then Harvard University president A. Lawrence Lowell), Brandeis was confirmed to the Supreme Court on June 1, 1916, on a largely party-line 47-22 vote, with one Democrat (Francis G. Newlands of Nevada) opposed and three Republicans in favor. Brandeis learned of his confirmation riding the train home from his office in Boston to his house in Dedham; that night his wife greeted him as "Mr. Justice." He would become one of the most influential and respected Supreme Court Justices in United States history. His votes and opinions envisioned the greater protections for individual rights and greater flexibility for government in economic regulation that would prevail in later courts.

In his widely cited dissenting opinion in Olmstead v. United States (1928), Brandeis argued, as he had in an influential law-review article prior to being nominated to the Court, that the Constitution protected a "right of privacy," calling it "the most comprehensive of rights and the right most valued by civilized men." Brandeis's position in Olmstead became the law of the land in Katz v. United States, of 1967, which overturned Olmstead.

Brandeis also joined with fellow justice Oliver Wendell Holmes, Jr. in calling for greater Constitutional protection for speech, disagreeing with the Court's analysis in upholding a conviction for aiding the Communist Party in Whitney v. California (1927) (though concurring with the disposition of the case on technical grounds). Brandeis's opinion foreshadows the greater speech protections enforced by the Earl Warren Court.

Brandeis also opposed the Supreme Court's doctrine of "liberty of contract," which often acted to shield business from government regulation on the right of employers and employees to freely contract with each other, and argued that the Court should adopt a broader view of what constituted "commerce" which could be regulated by Congress, foreshadowing decisions such as 1941's United States v. Darby.

During the 1932-1937 Supreme Court terms, Brandeis, along with Justices Cardozo and Stone, was a member of the Three Musketeers, which was considered to be the liberal faction of the Supreme Court. The three were highly supportive of President Roosevelt's New Deal programs, which most of the other Supreme Court Justices opposed. In New State Ice Co. v. Liebmann (1932), Brandeis in dissent famously urged that the states should be able to be "laboratories" for innovative government action, in the face of the Supreme Court's frequent invalidation of state measures regulating business. Brandeis's views on "liberty of contract" would prevail in the long run, culminating in the seminal Supreme Court case of West Coast Hotel v. Parrish (1937). He was urging deference to legislative judgments when fundamental individual liberties are not seriously threatened and showing a healthy respect for the vertical (federal vs. states vs. individual) and horizontal (judicial vs. legislative) separations of power.

As an octogenarian, Brandeis was deeply offended by his friend Franklin Roosevelt's court-packing scheme of 1937, with its implication that elderly justices needed special help to carry out their duties. Brandeis retired from the Court in 1939, to be replaced by William O. Douglas.

Zionist leader

Brandeis also became a prominent American Zionist. Zionism was the movement to establish a Jewish homeland in Palestine. Not raised religious, Brandeis became involved in Zionism through a 1912 conversation with Jacob de Haas, editor of a Boston Jewish weekly and a follower of Theodore Herzl. Brandeis became active in the Federation of American Zionists as a result. With the outbreak of World War I, the Zionist movement's headquarters in Berlin became ineffectual, and American Jewry had to assume larger responsibility for the Zionist movement. When the Provisional Executive Committee for Zionist Affairs was established in New York, Brandeis accepted unanimous election to be its head. In this position from 1914 to 1918, Brandeis was the leader of American Zionism. Brandeis embarked on a speaking tour in the fall and winter of 1914-1915 to support the Zionist cause. Brandeis emphasized the goal of self-determination and freedom for Jews through the development of a Jewish homeland in Palestine and the compatibility of Zionism and American patriotism. He expressed these views literarily in his short book, The Jewish Problem, How to Solve It.

Brandeis brought his influence in the Woodrow Wilson administration to bear in the negotiations leading up to the Balfour Declaration. Brandeis split with the European branch of Zionism, led by Chaim Weizmann, and resigned a leadership role in 1921. He retained membership, however, and remained active in Zionism until the end of his life.

End of life

Brandeis died in Washington, D.C., October 5 1941. The cremated remains of Justice Brandeis are interred under the portico of the Louis Brandeis Law school at the University of Louisville. A large collection of Brandeis's personal and official files is also archived at that institution.

Namesake institutions

References

Selected works by Brandeis

  • The Brandeis Guide to the Modern World, Alfred Lief, editor (Boston: Little Brown & Co., 1941)
  • Brandeis on Zionism, Solomon Goldman, editor (Washington, D.C.: Zionist Organization of America, 1942)
  • Business, a Profession, Ernest Poole, editor (Boston, MA: Small, Maynard, 1914)
  • The Curse of Bigness, Osmond K. Fraenkel, editor (New York, NY: Viking Press, 1934)
  • The Words of Justice Brandeis, Solomon Goldman, editor (New York, N.Y.: Henry Schuman, 1953)
  • Other People's Money and How the Bankers Use It (New York, NY: Stokes, 1914)
  • Melvin I. Urofsky & David W. Levy, editors, Half Brother, Half Son: The Letters of Louis D. Brandeis to Felix Frankfurter (University of Oklahoma Press, 1991)
  • Melvin I. Urofsky, editor, Letters of Louis D. Brandeis (State University of New York Press, 1980)
  • Melvin I. Urofsky & David W. Levy, editors, Letters of Louis D. Brandeis (State University of New York Press, 1971-1978, 5 vols.)
  • Louis Brandeis & Samuel Warren "The Right to Privacy," 4 Harvard Law Review 193-220 (1890-91)
  • "The Living Law," 10 Illinois Law Review 461 (1916)

Books about Brandeis

  • Jack Grennan, Brandeis & Frankfurter: A Dual Biography (New York, N.Y.: Harper & Row, 1984)
  • Alexander M. Bickel, The Unpublished Opinions of Mr. Justice Brandeis (Cambridge, MA: Harvard University Press, 1957)
  • Robert A. Burt, Two Jewish Justices: Outcasts in the Promised Land (Berkeley, CA: University of California Press, 1988)
  • Nelson L. Dawson, editor, Brandeis and America (Lexington, KY: University Press of Kentucky, 1989)
  • Jacob DeHaas, Louis D. Brandeis, A Biographical Sketch (Blach, 1929)
  • Felix Frankfurter, editor, Mr. Justice Brandeis (New Haven, CT: Yale University Press, 1932)
  • Ben Halpern, A Clash of Heroes: Brandeis, Weizman, and American Zionism (New York, N. Y.: Oxford University Press, 1986)
  • Samuel J. Konefsky, The Legacy of Holmes & Brandeis: A Study in the Influence of Ideas (New York, N.Y.: Macmillan Co., 1956)
  • David W. Levy, editor, The Family Letters of Louis D. Brandeis (University of Oklahoma Press, 2002)
  • Alfred Lief, Brandeis: The Personal History of an American Ideal (New York, N.Y.: Stackpole Sons, 1936)
  • Alfred Lief, editor, The Social & Economic Views of Mr. Justice Brandeis (New York, N.Y.: The Vanguard Press, 1930)
  • Jacob Rader Marcus, Louis Brandeis (Twayne Publishing, 1997)
  • Alpheus Thomas Mason, Brandeis: A Free Man's Life (New York, N.Y.: The Viking Press, 1946)
  • Alpheus Thomas Mason, Brandeis & The Modern State (Princeton, N.J.: Princeton University Press, 1933)
  • Thomas McGraw, Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn (Cambridge, MA: Harvard University Press, 1984)
  • Ray M. Mersky, Louis Dembitz Brandeis 1856-1941: Bibliography (Fred B Rothman & Co; reprint ed., 1958)
  • Bruce Allen Murphy, The Brandeis/Frankfurter Connection: The Secret Activities of Two Supreme Court Justices (New York, N.Y.: Oxford University Press, 1982)
  • Lewis J. Paper, Brandeis: An Intimate Biography of one of America's Truly Great Supreme Court Justices (Englewood Cliffs, N.J.: Pretice-Hall, Inc., 1983)
  • Catherine Owens Peare, The Louis D. Brandeis Story (Ty Crowell Co., 1970)
  • Edward A. Purcell, Jr., Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America (New Haven, CN: Yale University Press 2000)
  • Philippa Strum, Brandeis: Beyond Progressivism (Lawrence, KS: University Press of Kansas, 1993)
  • Philippa Strum, editor, Brandeis on Democracy (Lawrence, KS: University Press of Kansas, 1995)
  • Philippa Strum, Louis D. Brandeis: Justice for the People (Cambridge, Mass.: Harvard University Press, 1988)
  • A.L. Todd, Justice on Trial: The Case of Louis D. Brandeis (New York, N.Y: McGraw-Hill, 1964)
  • Melvin I. Urofsky, A Mind of One Piece: Brandeis and American Reform (New York, N.Y., Scribner, 1971)
  • Melvin I. Urofsky, Louis D. Brandeis, American Zionist (Jewish Historical Society of Greater Washington, 1992) (monograph)
  • Melvin I. Urofsky, Louis D. Brandeis & the Progressive Tradition (Boston, MA: Little Brown & Co., 1981)
  • Nancy Woloch, Muller v. Oregon: A Brief History with Documents (Boston, MA: Bedford Books, 1996)

Select articles

  • Bhagwat, Ashutosh A. (2004). Constitutional Law Stories. New York: Foundation Press.
  • Blasi, Vincent (1988). "The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney v. California". William & Mary Law Review 29 653.
  • Bobertz, Bradley C. (1999). "The Brandeis Gambit: The Making of America’s 'First Freedom,' 1909-1931". William & Mary Law Review 40 557.
  • Brandes, Evan B. (2005). "Legal Theory and Property Jurisprudence of Oliver Wendell Holmes, Jr. and Louis D. Brandeis: An Analysis of Pennsylvania Coal Company v. Mahon". Creighton Law Review 38 1179.
  • Collins, Ronald; Skover, David (2005). "Curious Concurrence: Justice Brandeis’s Vote in Whitney v. California". Supreme Court Review 2005 1–52.
  • Collins, Ronald; Friesen, Jennifer (1983). "Looking Back on Muller v. Oregon". American Bar Association Journal 69 294–298, 472–477.
  • Erickson, Nancy (1989). "Muller v. Oregon Reconsidered: The Origins of a Sex-Based Doctrine of Liberty of Contract". Labor History 30 228-250.
  • Frankfurter, Felix (1916). "Hours of Labor and Realism in Constitutional Law". Harvard Law Review 29 353–373.
  • Spillenger, Clyde (1996). "Elusive Advocate: Reconsidering Brandeis as People’s Lawyer". Yale Law Journal 105 1445.
  • Spillenger, Clyde (1992). "Reading the Judicial Canon: Alexander Bickel and the Book of Brandeis". Journal of American History 79 (1): 125–151.
  • Urofsky, Melvin I. (2005). "Louis D. Brandeis: Advocate Before and On the Bench". Journal of Supreme Court History 30 31.
  • Urofsky, Melvin I. (1985). "State Courts and Protective Legislation during the Progressive Era: A Reevaluation". Journal of American History 72 63-91.
  • Vose, Clement E. (1957). "The National Consumers' League and the Brandeis Brief". Midwest Journal of Political Science 1 267–290.

Selected opinions

References

See also

External links

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