Louis D. Brandeis : A Life

by UROFSKY, MELVIN

• ISBN13: 9780375423666
• ISBN10: 0375423664
• Format: Hardcover
• Copyright: 2009-09-22
• Publisher: Pantheon

Summary

The first full-scale biography in twenty-five years of one of the most important and distinguished justices to sit on the Supreme Court-- a book that reveals Louis D. Brandeis the reformer, lawyer, and jurist, and Brandeis the man, in all of his complexity, passion, and wit. Louis Dembitz Brandeis had at least four "careers." As a lawyer in the late nineteenth and early twentieth centuries, he pioneered how modern law is practiced. He, and others, developed the modern law firm, in which specialists manage different areas of the law. He was the author of the right to privacy; led the way in creating the role of the lawyer as counselor; and pioneered the idea of pro bono publicowork by attorneys. As late as 1916, when Brandeis was nominated to the Supreme Court, the idea of pro bono service still struck many old-time attorneys as somewhat radical. Between 1895 and 1916, when Woodrow Wilson named Brandeis to the Supreme Court, he ranked as one of the nation's leading progressive reformers. Brandeis invented savings bank life insurance in Massachusetts (he considered it his most important contribution to the public weal) and was a driving force in the development of the Federal Reserve Act, the Clayton Antitrust Act, and the law establishing the Federal Trade Commission. Brandeis as an economist and moralist warned in 1914 that banking and stock brokering must be separate, and twenty years later, during the New Deal, his recommendation was finally enacted into law (the Glass-Steagall Act of 1933) but was undone by Ronald Reagan, which led to the savings-and-loan crisis in the 1980s and the world financial collapse of 2008. We see Brandeis, who came from a family of reformers and intellectuals who fled Europe and settled in Louisville. Brandeis the young man coming of age, who presented himself at Harvard Law School and convinced the school to admit him even though he was underage. Brandeis the lawyer and reformer, who in 1908 agreed to defend an Oregon law establishing maximum hours for women workers, and in so doing created an entirely new form of appellate brief that had only a few pages of legal citation and consisted mostly of factual references. Urofsky writes how Brandeis witnessed and suffered from the anti-Semitism rampant in the early twentieth century and, though not an observant Jew, with the outbreak of the Great War in 1914, became at age fifty-eight head of the American Zionist movement. During the next seven years, Brandeis transformed it from a marginal activity into a powerful force in American Jewish affairs. We see the brutal six-month confirmation battle after Wilson named the fifty-nine-year-old Brandeis to the court in 1916; the bitter fight between progressives and conservative leaders of the bar, finance, and manufacturing, who, while never directly attacking him as a Jew, described Brandeis as "a striver," "self-advertiser," and "a disturbing element in any gentleman's club." Even the president of Harvard, A. Lawrence Lowell, signed a petition accusing Brandeis of lacking "judicial temperament." And we see, finally, how, during his twenty-three years on the court, this giant of a man and an intellect developed the modern jurisprudence of free speech, the doctrine of a constitutionally protected right to privacy, and suggested what became known as the doctrine of incorporation, by which the Bill of Rights came to apply to the states. Brandeis took his seat when the old classical jurisprudence still held sway, and he tried to teach both his colleagues and the public-- especially the law schools-- that the law had to change to keep up with the economy and society. Brandeis often said, "My faith in time is great." Eventually the Supreme Court adopted every one of his dissents as the correct

Author Biography

MELVIN I. UROFSKY is Professor of Law & Public Policy and Professor Emeritus of History at Virginia Commonwealth University and was the chair of its History department. He is the editor (with David W. Levy) of the seven-volume collection of Brandeis’s letters, as well as the author of American Zionism from Herzl to the Holocaust and Louis D. Brandeis and the Progressive Tradition. He lives in Gaithersburg, Maryland.

Table of Contents

Preface: The Idealistic Pragmatist	p. ix
Louisville Roots	p. 3
Harvard, St. Louis, and Back	p. 25
Warren & Brandies	p. 46
First Steps	p. 75
Alice	p. 103
Traction and Utilities	p. 130
A Perfect Reform	p. 155
Taking on Morgan	p. 181
An Attorney for the People	p. 201
Democracy in the Workplace	p. 228
The Pinchot-Ballinger Affair	p. 254
Railroad Interludes	p. 277
The Curse of Bigness	p. 300
National Politics	p. 327
A Snapshot of Mr. Brandies	p. 353
The New Freedom	p. 372
Men! Money! Discipline!	p. 399
Nomination	p. 430
Settling In	p. 460
Extrajudicial Activities: I	p. 490
Zionism, 1917-1921	p. 515
War and Speech - And Holmes	p. 545
Brandies and Taft	p. 571
The Taft Court and Legal Classicism	p. 592
A New Agenda: The Court and Civil Liberties	p. 618
Extrajudicial Activities: II	p. 642
Depression	p. 669
The New Deal	p. 691
Extrajudicial Activities: III	p. 721
The Passing of Isaiah	p. 741
Acknowledgments	p. 757
Notes	p. 759
Index	p. 903
Table of Contents provided by Ingram. All Rights Reserved.

Excerpts

PREFACE

THE IDEALISTIC PRAGMATIST

In 1920 theHarvard Law School professor Manley Hudson journeyed to Washington, and while there paid a visit on Justice Louis D. Brandeis and his law clerk, Dean Acheson. As he usually did, Brandeis quizzed his guest about recent events at the law school and also about Hudson's role as a legal adviser to the League of Nations. While discussing his work, Hudson alluded to international law as conditional, with principles varying depending upon the situation and the nations involved. He had barely finished when, to his great surprise and alarm, Brandeis stood up and began, as Acheson described it, to thunder like an Old Testament prophet. Principles are fixed and immutable, Brandeis declared, because without reliance on established values democratic society and individual freedom are impossible. He quoted Goethe and Euripides, and on it went, a frightening display of elemental force.

The incident is indicative of a key aspect of Louis Brandeis's nature— his idealism. He once told his niece that "ideals are everything." His attraction to the law derived in part from his belief that law provided the ideal means by which free men could impose order on their behavior and at the same time allow the greatest liberty for each person. He said many times that he had joined the Zionist movement because of its idealistic nature. For Brandeis, above all things the individual mattered, and the best society allowed each person, through hard work, to achieve all that his or her talents deserved. He did not believe in the mass salvation of "isms"; the world would be made better one person at a time. The good life rested on the dignity and independence of the individual, who could then do the hard work required to sustain freedom in a democratic society.

Idealism often conjures up the image of naïveté, of a romantic and impractical quixotism; none of these words apply to Brandeis. No one could have accomplished what he did in the legal profession, as a reformer, as a Zionist leader, and as a Supreme Court justice without being tough and realistic. He did not tilt at windmills nor see the world through rose- colored glasses. Rather, as he once told his daughter, he believed life to be hard.

What set Louis Brandeis apart, what makes his life so interesting both then and now, is how he wedded this idealism to pragmatism. He never abandoned his first principles, and some of his views, especially about economics, reflected idealism more than the reality of a changing world. Indeed, he found much in modern life ugly, impersonal, and dangerous to the goals of a democratic society. In this, however, he may have been far more prescient than some of his critics.

Brandeis lived and worked in the real world, and when he confronted a problem— either as a lawyer or as a citizen— he acted, and as he once explained, he worked on the question for as long as he could, trying to come up with an effective solution. In his reforms, it is always apparent how the idealist informed the pragmatist. He believed in an economic system of free enterprise not because one could grow rich (which he did) but because the market provided a moral proving ground. His economic reforms, as well as the advice he gave to his law clients, aimed at making business run not just more smoothly but more honestly. In one
of his first public endeavors he helped the liquor lobby beat back prohibition in Massachusetts. People were going to drink, he conceded, therefore make the laws regulating liquor fair to all, so that they could be effective and keep the liquor dealers out of politics. When one of his clients complained about labor unrest at his factory, Brandeis discovered that the workers had a  legitimate complaint, and he helped the manufacturer devise a system that provided his men with steady employment.

Even if some of his proposals failed to work in the long run, the

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Excerpted from Louis D. Brandeis: A Life by Melvin Urofsky
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