Edited by Gerald Boerner
We examine the life today of one of the legal geniuses that planted the seeds that today allows us to harvest the benefits for the common man (and woman). Louis D. Brandeis was just that type of advocate for the people, hence he became known as “the People’s Lawyer” and the “Robin Hood of the Law”. Although his poor eyesight made law school difficult under the gas lights of the 1870s, he paid other students to read the books to him; he graduated from Harvard Law School as Valedictorian with the highest GPA, a record that stood for eight decades!
Brandeis contributed several significant concepts to the legal profession that have real applicability today. He was a strong supporter for Freedom of Speech and the Right to Privacy. All one needs to do today is to look at the intrusiveness of government into our lives following 9/11 to appreciate this. And our privacy is further threatened by the many online social networks to which we belong to understand this. His advocacy for the Freedom of Speech enables the common man to question the actions of our government, in spite of the McCarthy hearings, HUAC, the anti-communist zeitgeist, and the search for threats to Homeland Security.
The other major contribution made by Brandeis was the “Brandeis Brief”. This changed how legal cases were argued in court. Previous to Brandeis, arguments were made based only on legal theory. Following the 1908 Muller v. Oregon case, legal briefs were supported not only by legal theory, but also by documentation and expert testimony. These are the techniques that have been used in support of environmental protection, consumer product and other important public and personal rights issues. As a Supreme Court Justice, he brought this activist zeal to the court.
But, now we need to proceed with our exploration of the life and contributions of the Honorable Louis D. Brandeis… GLB
These Introductory Comments are copyrighted:
Copyright©2011 — Gerald Boerner — All Rights Reserved
[ 4234 Words ]
Quotations Related to LOUIS D. BRANDEIS:
“If we desire respect for the law, we must first make the law respectable.”
— Louis D. Brandeis
“If we would guide by the light of reason we must let our minds be bold.”
— Louis D. Brandeis
“Neutrality is at times a graver sin than belligerence.”
— Louis D. Brandeis
“Experience teaches us to be most on our guard to protect liberty when the government’s purposes are beneficent.”
— Louis D. Brandeis
“In the frank expression of conflicting opinions lies the greatest promise of wisdom in governmental action.”
— Louis D. Brandeis
“Fear of serious injury alone cannot justify oppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears.”
— Louis D. Brandeis
“Our government… teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”
— Louis D. Brandeis
“To declare that in the administration of criminal law the end justifies the means to declare that the Government may commit crimes in order to secure conviction of a private criminal would bring terrible retribution.”
— Louis D. Brandeis
Louis Brandeis: "The People’s Attorney" & Supreme Court Justice
Louis Dembitz Brandeis (1856 – 1941) was an Associate Justice on the Supreme Court of the United States from 1916 to 1939. He was born in Louisville, Kentucky, to Jewish parents who had emigrated from Europe. He enrolled at Harvard Law School, graduating at the age of twenty with the highest grade average in the college’s history.
Brandeis settled in Boston where he became a recognized lawyer through his work on social causes that would benefit society. 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". Years later, a book he published, entitled Other People’s Money, suggested ways of curbing the power of large banks and money trusts, which partly explains why he later 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 the "Jewish problem" of 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 (FTC). 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 U.S. Supreme Court. However, 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." He was eventually confirmed by the Senate by a vote of 47 to 22 on June 1, 1916, and became 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 high court.
Early Career in Law
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 and accepted a job with a law firm in St. Louis, where he filed his first brief and published his first law review article. However, after seven months, he tired of the minor casework and accepted an offer by his Harvard classmate, Samuel 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.
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."
First Law Firm: Warren and Brandeis
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 two fledgling lawyers," garnering Brandeis more financial security and the freedom to eventually take an active role in progressive causes.
As partner in his law firm, he worked as a consultant and advisor to businesses, but was also as a litigator "who reveled in the challenge of the courtroom." 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." On November 6, 1889, he pleaded for the first time before the U.S. Supreme Court as the Eastern counsel of the Wisconsin Central Railroad and won. Not long after that, Chief Justice Melville Fuller recommended him to a friend as the best attorney he knew of in the Eastern U.S.
Before taking on business clients, he insisted they agree to two major conditions: "first, that he would never have to deal with intermediaries, but only with the person in charge…[and] second, that he must be permitted to offer advice on any and all aspects of the firm’s affairs" that seemed relevant. He saw himself as a "counselor at law," rather than simply a strategist in lawsuits. He preferred helping clients avoid such events as lawsuits, strikes, or other crises, by giving early advice. Brandeis explained: "I would rather have clients than be somebody’s lawyer." In a note found among his papers, he reminded himself to "advise client on what he should have, not what he wants."
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.
Brandeis was "unusual among lawyers" because he consistently turned away cases he considered bad. If he believed a client to be in the wrong, "either he would persuade his clients to make amends … or he would withdraw from the case." 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."
Common Law and the Right to Privacy
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."
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." They wrote:
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." 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. 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 on the Supreme Court, Brandeis discussed the right to privacy in his famous dissent in: Olmstead v. United States.
Privacy law is the area of law concerned with the protection and preservation of the privacy rights of individuals. Increasingly, governments and other public as well as private organizations collect vast amounts of personal information about individuals for a variety of purposes. The law of privacy regulates the type of information which may be collected and how this information may be used and stored.
The scope of applicability of privacy laws is called expectation of privacy.
International Legal Standards on Privacy
Article 8 of the European Convention on Human Rights, which was drafted and adopted by the Council of Europe in 1950 and meanwhile covers the whole European continent except for Belarus and Kosovo, protects the right to respect for private life: "Everyone has the right to respect for his private and family life, his home and his correspondence." Through the huge case-law of the European Court of Human Rights in Strasbourg, privacy has been defined and its protection has been established as a positive right of everyone.
Article 17 of the International Covenant on Civil and Political Rights of the United Nations of 1966 protects also privacy: "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."
Becoming the "People’s Lawyer"
Klebanow and Jonas write that Brandeis had begun to evolve into "the people’s lawyer." He was no longer accepting payment for "public interest" cases even when they required pleadings before judges, legislative committees, or administrative agencies. He also became involved in developing public opinion through writing magazine articles, making speeches, or helping form interest groups. He "insisted on serving without pay so that he would be free to address the wider issues involved rather than confine himself merely to the case at hand."
In a 1905 address to law students and others at Harvard, he explained his philosophy:
"The great achievement of the English-speaking people is the attainment of liberty through law. It is natural, therefore, that those who have been trained in the law should have borne an important part in that struggle for liberty and in the government which resulted . . . .
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."
In 1910, a New York Times article tried to explain how someone of the stature of Brandeis would suddenly decide to become a public advocate:
Mr. Brandeis frankly admits that the thing looks queer;… Some men buy diamonds, some collect paintings and rare works of art, others delight in automobiles or swift aero racers. His hobby is to give himself the luxury of taking up a problem for the people and absolutely refusing to be compensated therefor…. In this way he expects to be able to avoid the misfortune of accumulating too great wealth and leaving to his children the handicap of having too much money. He would prefer that they should earn their way. He had the good fortune just as he was beginning to study law to be compelled by his father’s financial reverses to borrow means to go on with his studies, and he has always believed it was a providential experience.
Upholding Workplace Laws with the "Brandeis Brief"
In 1908 he chose to represent the state of Oregon in the case of Muller v. Oregon, to the U.S. Supreme Court. At issue was whether it was constitutional for a state law to limit the hours that female workers could work. Up until this time it was considered an "unreasonable infringement of freedom of contract" between employers and their employees for a state to set any wages or hours legislation.
Brandeis, however, discovered that earlier Supreme Court cases limited the rights of contract when the contract had "a real or substantial relation to public health or welfare." He therefore decided that the best way to present the case would be to demonstrate through an abundance of workplace facts, "a clear connection between the health and morals of female workers" and the hours that they were required to work. To accomplish this, he filed what has become known today as the "Brandeis Brief." Here, he presented a much shorter traditional brief, but included more than a hundred pages of documentation, including social worker reports, medical conclusions, factory inspector observations, and other expert testimonials, which together showed a preponderance of evidence that "when women worked long hours, it was destructive to their health and morals."
The strategy worked, and the Oregon law was upheld. Justice David Brewer directly credited Brandeis with demonstrating "a widespread belief that woman’s physical structure and the functions that she performs … justify special legislation." Thomas Mason writes that with the Supreme Court affirming Oregon’s minimum wage law, Brandeis "became the leading defender in the courts of protective labor legislation". As Justice Douglas wrote years later, "Brandeis usually sided with the workers; he put their cause in noble words and the merits of their claims with shattering clarity."
One of the hallmarks of the case was Brandeis’s minimizing common-law jurisprudence in favor of extralegal information relevant to the case. According to judicial historian Stephen Powers, the "so-called ‘Brandeis Brief’ became a model for progressive litigation," by taking into consideration social and historical realities rather than just the abstract general principles. He adds that it had "a profound impact on the future of the legal profession" by accepting more broad-based legal information. John Vile adds that this new "Brandeis Brief" was increasingly used, most notably in the Brown v. Board of Education case in 1954 that desegregated public schools.
Brandeis Brief Concept
The Brandeis Brief was a pioneering legal brief that was the first in United States legal history to rely not on pure legal theory, but also on analysis of factual data. It is named after litigator Louis Brandeis, who presented it in his argument for the 1908 US Supreme Court case Muller v. Oregon. However, the brief was researched and co-written by Brandeis’s sister-in-law, legal reformer Josephine Clara Goldmark of the National Consumers League, who collected empirical data from hundreds of sources to show the effects of long hours and harsh working conditions on wage-earning women.
In Muller v. Oregon, Brandeis used Goldmark’s research to convince the Supreme Court that women were inferior and weaker than men in terms of labor, and that their bodies were communal property that required legal protections against overwork.
The Brandeis Brief changed the direction of the Supreme Court and of U.S. law. The Brandeis Brief became the model for future Supreme Court presentations in cases affecting the health or welfare of classes of individuals. This model was later successfully used in Brown v. Board of Education to demonstrate the harmful psychological effects of segregated education on African-American children.
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), was a landmark decision of the United States Supreme Court that declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which allowed state-sponsored segregation. Handed down on May 17, 1954, the Warren Court’s unanimous (9–0) decision stated that "separate educational facilities are inherently unequal." As a result, de jure racial segregation was ruled a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. This ruling paved the way for integration and the civil rights movement.
Supporting President Wilson
Brandeis’s positions on regulating large corporations and monopolies carried over into the presidential campaign of 1912. Democratic candidate Woodrow Wilson made it "the central issue," and, according to Wilson historian Arthur Link, "part of a larger debate over the future of the economic system and the role of the national government in American life." Whereas the Progressive Party candidate, Theodore Roosevelt felt that trusts were inevitable and should be regulated, Wilson and his party aimed to "destroy the trusts" by ending special privileges, such as protective tariffs and unfair business practices that made them possible.
On that basis, Brandeis, though "nominally a Republican," supported Wilson and urged his friends and associates to join him. The two men met for the first time at a private conference in New Jersey that August and spent three hours discussing economic issues. Mason notes that Brandeis came away from the meeting a "confirmed admirer of Wilson, whom he described in letters to his friends as possessed of a remarkable mind and likely to make ‘an ideal president.’" Wilson thereafter began using the term "regulated competition," the concept that Brandeis had developed, and made it the essence of his program. In September, Wilson asked Brandeis to "set forth explicitly the actual measures by which competition can be effectively regulated."
Nominated to the Supreme Court
On January 29, 1916, Wilson "surprised the nation" by nominating Brandeis to become a member of the U.S. Supreme Court. However, his nomination was bitterly contested and denounced by conservative Republicans, including former president (and future Chief Justice) William Howard Taft, whose credibility was damaged by Brandeis in court battles and at one point calling him a "muckraker." Further opposition came from the legal profession, including former Attorney General George W. Wickersham and former presidents of the American Bar Association, such as ex-Senator and Secretary of State Elihu Root of New York, claiming he was "unfit" to serve on the Supreme Court.
The controversy surrounding Brandeis’s nomination was so great that the Senate Judiciary Committee, for the first time in its history, held a public hearing on the nomination, allowing witnesses to appear before the committee and offer testimony both in support of and in opposition to Brandeis’s confirmation. While previous nominees to the Supreme Court had been confirmed or rejected by a simple up-or-down vote on the Senate floor—often on the same day on which the President had sent the nomination to the Senate—a then-unprecedented four months lapsed between Wilson’s nomination of Brandeis and the Senate’s final confirmation vote.
Please take time to further explore more about LOUIS D. BRANDEIS,
THE RIGHT TO PRIVACY, THE BRANDEIS BRIEF, ZIONISM, and
BROWN v. BOARD OF EDUCATION by accessing the Wikipedia
articles referenced below…
Other Events on this Day:
The first commercial telephone exchange is installed in New Haven, Connecticut, serving 21 subscribers with eight lines.
Julia Ward Howe becomes the first woman elected to the American Academy of Arts and Letters. Howe, a lifelong activist and public servant, wrote "The Battle Hymn of the Republic" in 1861 as a patriotic hymn set to the tune of "John Brown’s Body," a popular marching song among Union troops during the Civil War.
Congress creates the U.S. Coast Guard.
Louis Brandeis, known during his law career as the "people’s attorney" for his tireless and often pro bono work for social causes, is nominated to the Supreme Court by President Woodrow Wilson. After bitter opposition from many conservative Republicans concerned about Brandeis’ antiestablishment radicalism, Brandeis will be confirmed by a vote of 47 to 22, becoming the first Jewish justice to sit on the nation’s highest court.
America’s first ski lift opens in Woodstock, Vermont — a tow rope pulled by a Model T engine.
The space shuttle Challenger disintegrates 73 seconds after lifting off from Cape Canaveral, Fla., killing all seven crew members: mission commander Dick Scobee; pilot Michael J. Smith; mission specialists Judith A. Resnik, Ronald E. McNair and Ellison S. Onizuka; and payload specialists Gregory B. Jarvis and Christa McAuliffe, a high school social studies teacher.
Dates and events based on:
William J. Bennett and John Cribb, (2008) The American Patriot’s Almanac Daily Readings on America. (Kindle Edition)
Background information is from Wikipedia articles on:
Wikipedia: Louis Brandeis…
Wikipedia: Right to Privacy…
Wikipedia: Brandeis Brief…
Wikipedia: Brown v. Board of Education…
Brainy Quote: LOUIS BRANDEIS Quotes…
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