Louis D. Brandeis: A Life. By Melvin Urofsky. Pantheon Books; 976 pages; $40. Buy from Amazon.com
IN SEPTEMBER 1905 an overseer at a laundry in Portland, Oregon, made a woman, who happened to be a labour activist, work overtime in breach of a state law that no female should have to work more than ten hours a day. The worker sued, and the owner of the laundry, one Curt Muller, was fined $10. Muller appealed to the Supreme Court of the United States, claiming that the Oregon statute violated the “due process” clause of the 14th amendment. The National Consumers League briefed a successful Boston lawyer, Louis Brandeis, to defend the state's protective legislation.
Brandeis realised that his main difficulty was that the Supreme Court, with a conservative majority, had decided only three years earlier that a New York state law forbidding long hours in a bakery was in breach of the constitution. His strategy must be to show that, although states might not intervene in the contractual relation between employer and employee, the state government did have, under its police power, the right to protect the health and safety of its citizens. He wrote the first of what came to be called “Brandeis briefs”. It was 113 pages long. Only three pages discussed the law, including the previous case. The rest argued from what Brandeis called “facts of common knowledge”, drawn mainly from British and European health reports, that Oregon was simply protecting women's health.
Before this, American thinking about the relationship between the state and society had been dominated by what was called “legal classicism”. Its two pillars were the sanctity of contract and “substantive due process”. This latter, a concept originally intended to guarantee the rights of newly emancipated slaves, was used to protect the rights of private property from interference by the state.
Brandeis was not the first American jurist to challenge the exploitation of legal pedantry in the service of reactionary politics. Years earlier Justice Oliver Wendell Holmes pleaded that “the life of the law has been not logic but experience”. Others in the early 20th century saw that the law must reflect the new circumstances of an urban, industrialised America where workers were playthings in the hands of giant corporations.
Brandeis, however, showed how it could be done: by deploying solid masses of sociological fact (a method that led, for example, to the 1954 Brown ruling that racial segregation was unconstitutional). He served on the Supreme Court for close to a quarter of a century and with liberal colleagues established a new sociological jurisprudence, responsive to the changing realities of ordinary life. Much of the legal conflict of the past few years in the United States has resulted from the efforts of a new generation of conservatives to reverse the work of Brandeis and his companions and disciples on the court.
Melvin Urofsky's lapidary new biography is a rich study of a remarkable life. Brandeis was born in 1856, into a family of non-religious Jews a few years after they emigrated from Germany to the United States. After shining at the Harvard Law School, he set up as a commercial lawyer and within a few years was financially secure for life.
Increasingly he found himself defending what he saw as the public interest against what were known as “the interests”. He fought an elevated-railway company and he campaigned for savings banks to be allowed to provide life insurance for poor people. He defended unions and with great courage challenged the efforts of the Morgan “interests” to build a rail monopoly in New England. “I am rapidly becoming a Socialist,” he exclaimed. “What the bankers leave undone their lawyer minions supply.”
He was, though, no socialist. He was in many ways typical of the Progressives, middle- and upper-class people who were alarmed at what the growth of metropolitan cities and huge corporations were doing to a rustic, egalitarian America. One of the keys to Brandeis's philosophy was a very un-socialist horror of bigness, in unions as well as corporations. He was a pragmatist, one who instinctively reached for compromise.
Brandeis was never a practising Jew, but he was a passionate convert to Zionism. He understood that for many American Jews, America itself was their Zion yet his services to the Jewish homeland in Palestine were great. Like many Zionists, he was utterly unsympathetic to the Arabs. “As against the Bedouins”, he wrote, “our pioneers are in a position not unlike the American settlers against the Indians.”
This article appeared in the Books and arts section of the print edition
Louis Brandeis, in full Louis Dembitz Brandeis, (born Nov. 13, 1856, Louisville, Ky., U.S.—died Oct. 5, 1941, Washington, D.C.), lawyer and associate justice of the U.S. Supreme Court (1916–39) who was the first Jew to sit on the high court.
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Brandeis’s parents, members of cultivated Bohemian Jewish families, had emigrated from Prague to the United States in 1849. Brandeis attended the public schools of Louisville and the Annen Realschule in Dresden, Ger., before entering the Harvard Law School, from which he graduated at the head of his class in 1877. After less than a year of practice in St. Louis, Mo., he moved to Boston, where he maintained an active and prosperous practice until his appointment to the Supreme Court of the United States in 1916.
At the bar Brandeis came to be known as the people’s attorney, by virtue of his representation of interests that had not commonly enjoyed such formidableadvocacy. When the affairs of the Equitable Life Assurance Society of New York precipitated widespread alarm in 1905, Brandeis became unpaid counsel for the New England Policy-Holders’ Protective Committee. Eventually, to remedy abuses by life-insurance firms, Brandeis devised a system, used in Massachusetts (from 1907), New York, and Connecticut, whereby life insurance was offered over the counter by savings banks at rates within the means of workers. From 1907 to 1914 he defended, against charges of unconstitutionality, statutes of various states prescribing maximum hours of labour and minimum wages. At that time he devised what is still known to lawyers as the Brandeis brief, in which economic and sociological data, historical experience, and expert opinions are marshaled to support the legal propositions. His most notable book, a volume of essays, Other People’s Money, and How the Bankers Use It (1914), dealt with the control exercised by investment bankers over American industry. His work attacking monopolies and interlocking directorates influenced the passage in 1914 of the Clayton Anti-Trust Act and the Federal Trade Commission Act, which strengthened the government’s antitrust power. Brandeis’s support of Pres. Woodrow Wilson’s theory of enforced competition among businesses was repaid on Jan. 28, 1916, when the president appointed him to the Supreme Court. Over bitter opposition by numerous business interests and anti-Semites, the nomination was confirmed by the U.S. Senate, and Brandeis took office on June 5.
In his major judicial opinions, Brandeis expressed mistrust of both the unlimited exercise of governmental power in the name of the people and a conception of individual liberty resulting in the agreement of a few persons to monopolize an economic activity affecting everyone. He believed that, to preserve federalism, state legislatures had to be able to make laws suited to varied and changing needs, but he wished to restrict state laws when they interfered with the freedom to express ideas. In the case of (Charlotte) Anita Whitney (Whitney v. California, 1927), a communist who had been convicted under a state criminal-syndicalism statute, he delivered a concurring opinion urging that penalties on speech be applied only if they met the “clear and present danger” (of inciting to admittedly illegal acts) test formulated earlier by Justice Oliver Wendell Holmes. Observing the procedural limits on the court, however, he voted to affirm the conviction because Whitney’s lawyer had not properly raised the constitutional free-speech issue in the trial court. Previously he had dissented when the Supreme Court upheld convictions under the Espionage Act of 1917 for publishing criticisms of the U.S. entry into World War I.
On most important issues Brandeis was aligned, often in the minority, with his colleague Oliver Wendell Holmes. During the period of the New Deal, however, many of the dissenting positions of Holmes and Brandeis came to be accepted by the court. While Brandeis supported the constitutional validity of most New Deal legislation, he did not do so indiscriminately; he joined, for example, in the court’s decision holding the National Industrial Recovery Act of 1933 to be unconstitutional. He retired on Feb. 13, 1939.
From 1912 Brandeis was an enthusiastic supporter of Zionism, the only cause with which he was publicly identified. Brandeis University, opened in 1948 in Waltham, Mass., was named for him.