Louis Dembitz Brandeis ( ; November 13, 1856 – October 5, 1941) was an American lawyer who served as an associate justice of the U.S. Supreme Court from 1916 to 1939. Brandeis was a leading figure in the antitrust movement at the turn of the 20th century, particularly in his resistance to the monopolization of the New England railroad. His anti-monopolistic jurisprudence laid the intellectual foundation for the New Brandeis movement, a contemporary revival of antitrust thought spearheaded by figures such as Lina Khan and Tim Wu.
Starting in 1890, Brandeis 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." In his books, articles, and speeches, he criticized the power of large banks, money trusts, powerful corporations, monopolies, public corruption, and mass consumerism, all of which he felt were detrimental to American values and culture. He also spoke in favor of syndicalist reforms like co-determination, workplace democracy and multi-stakeholder businesses. He later became active in the Zionist movement, seeing it as a solution to antisemitism in Europe, while at the same time being a way to "revive sense of the Jewish spirit."
When his family's finances became secure, he began devoting most of his time to public causes, and he was later dubbed the "People's Lawyer." He insisted on taking cases without pay so that he would be free to address the wider issues involved. The Economist newspaper called 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 a seat on the Supreme Court. His nomination was bitterly contested, partly because, as Justice William O. Douglas later 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." The Senate confirmed Brandeis by a vote of 47 to 22, making him the first Jewish U.S. Supreme Court justice. Brandeis's 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.
Early life
Family roots
Louis David Brandeis was born on November 13, 1856, in Louisville, Kentucky. He was the youngest of four children, and raised in a secular Jewish household.
His parents, Adolph Brandeis and Frederika Dembitz immigrated to the United States from their childhood homes in Prague in Bohemia, Austrian Empire (now the Czech Republic). They emigrated as part of their extended families for both economic and political reasons. His extended family included Dante scholar Irma Brandeis, whose father was Brandeis' second cousin. 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. 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."
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. Louis's father developed a grain-merchandising business. Worries about the U.S. economy took the family back to Europe in 1872, but they returned in 1875.
Family life The Brandeis family 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 lives. 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.
In their religious beliefs, although his family was Jewish, only his extended family practiced a more conservative form of Judaism. They celebrated the main Christian holidays along with most of their community, 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. In later years, his mother, Frederika, wrote of this period:
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.
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."
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." 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 in Dresden, Germany, 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.
Law school 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. Despite the fact that he entered the school without any financial help from his family, he became "an extraordinary student".
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 the casebook method to instruct students in legal reasoning. Brandeis easily adapted to the new methods, becoming active in class discussions, 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.
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.
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 impressive. He graduated in 1877 as valedictorian and was elected to Phi Beta Kappa. Brandeis achieved the highest grade point average in the history of the school, a record that stood for eight decades. Brandeis said of that period: "Those years were among the happiest of my life. I worked! For me, the world's center was Cambridge."
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. After seven months, he tired of the minor casework and accepted an offer by his Harvard classmate, Samuel D. Warren II, 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 also came from a wealthy Boston family and their new firm benefitted 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 firm, garnering Brandeis more financial security and eventually the freedom to take an active role in progressive causes.
As a 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." 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 in Wisconsin Central Railroad Company v. Price County, 133 US 496 (1889), 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.
Before taking on business clients, he insisted they agree to two major conditions: that he would only deal with the person in charge, 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. 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:
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. 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."