When Woodrow Wilson tapped Louis D. Brandeis for the Supreme Court in 1916, the nomination generated more adverse reaction than any previous Supreme Court appointment in American legal history. Six former presidents of the American Bar Association opposed the nomination, as did the president of Brandeis’s alma mater, Harvard University. Former President and future Chief Justice William Howard Taft grumbled that “it is one of the deepest wounds I have had as an American and a lover of the Constitution and a believer in progressive conservatism, that such a man as Brandeis could be put on the Court.” Only a progressive counteroffensive, orchestrated behind the scenes by Brandeis himself and aided by Wilson’s eleventh-hour arm-twisting, rescued the nomination from defeat in the Senate.
Conservatives—conservative lawyers in particular—had good reason to mistrust Louis Brandeis. A graduate of the prestigious Harvard Law School and a self-made millionaire, he had gained admission to the sanctum sanctorum of power in Boston’s legal community only to reject his position and embark on a new career as reformer. The erstwhile corporate lawyer marshaled his considerable legal skills for assaults against the bastions of commercialism and wealth that he once represented. Former colleagues at the bar became his adversaries. Attacking “the curse of bigness,” Brandeis took on monopolies, utilities, and other interests that he perceived were exploiting the common man. Some former associates believed Brandeis had converted to socialism; others thought him a mere demagogue. Most had little idea of what made Brandeis tick, a fact that made them all the more apprehensive when he was chosen as one of the nine justices on the most powerful court in the land.
The justice’s major biographers, including Alpheus Thomas Mason, Melvin I. Urofsky, and now Philippa Strum, have each taken their turn at solving the enigma of Brandeis’s transformation, and, on most counts, have reached consensus. All agree that by the time Brandeis ascended to the Supreme Court his personal philosophy had matured, so that the stances he assumed while on the bench were predictable. Then approaching age 60, Brandeis was an avowed democrat (with a small “d”) and an opponent of “bigness” in business and government. All agree that Brandeis was not a rebel in the traditional sense; his reformism was conservative rather than radical. He abhorred socialism, bolshevism, and the other “isms” of his day. He longed for a return to bygone times, when the entire people, not just a wealthy elite, were responsible for society’s betterment. Brandeis walked in the footsteps of earlier New England reformers, such as Emerson; in the words of a former law partner, he became “more Brahmin than the Brahmins.” And most biographers have traced Brandeis’s democratic sense to his parents, to his Cambridge education, and to the 19th-century Jeffersonian-Jacksonian tradition in the United States.
Strum’s examination of Brandeis’s intellectual makeup mirrors the findings of Mason and Urofsky but with a novel twist. She contends that Brandeis’s ideal of popular democracy comports with that practiced by the Greeks during the Age of Pericles: “Brandeis was much influenced by the Greek polis of the fifth century, B.C., which he considered the acme of civilized existence. There, he thought, . . .citizen participation in public life flourished, the properly small state was therefore well run, and human beings were able to attain heights of culture and self-fulfillment.” Brandeis, Strum finds, was moved particularly by Alfred Zimmern’s TheGreek Commonwealth, a book that touted the superiority of Greek institutions. It was Zimmern who convinced Brandeis, a Zionist leader, that Jews could emulate the ancient Greek model of democracy in the deserts of modern-day Palestine.
While Zimmern and the Greeks may have fired the imagination of Brandeis toward the vision of a democratic Jewish state, it cannot be determined if these forces motivated his reformism at home. Zimmern’s influence clearly did not, since his book was published in 1912, long after Brandeis had assumed his role as a turn-of-the-century Ralph Nader. While Brandeis may have read and admired the ancients, their influence on his intellectual development is an imponderable.
Rather than searching the ages or even the early 19th century for the roots of Brandeis’s reformism, Strum might have found the solution within the justice’s own lifetime. Brandeis matured during the Progressive Era, a time of social and economic disruption, when, as Robert H. Wiebe reminds us, Americans searched for “a new order.” These years witnessed the emergence of numerous reformers, each with his own particular prescription for remedying the economic polarization that resulted from rapid industrialization. For Eugene V. Debs, the solution was socialism; for Henry George, land-value taxation; for Edward Bellamy, the industrial army; and for Henry Demarest Lloyd, cooperation. Recent biographers of men such as Debs, George, Bellamy, and Lloyd have found that although they proposed radically different solutions for national problems, a common thread running through their backgrounds was a republican (with a small r) ideology—a belief in government by the people, coupled with an almost paranoid fear of concentrations of power and elitism. These Progressives were the successors to the Jacksonian Democrats of the 1830’s and 40’s, Americans who first pitted the common man against the forces of privilege and monopoly. Their remedies were directed at tempering or destroying monopolies and returning political and economic power to the masses. Brandeis was a contemporary of Debs, George, Bellamy, Lloyd, and others of their kind. We know that Brandeis held George and Lloyd in high regard. Although he had little faith in some solutions they advocated, he shared their fears of privilege and despaired over the possible demise of popular government.
A number of prominent attorneys, including Thomas G. Shearman of New York, William Lloyd Garrison II of Boston, and Clarence Darrow of Chicago, also were infected with the age’s spirit and worked for various reform causes. Brandeis came to follow their lead. His attack on the common enemy was through a program of “industrial democracy,” one that made workers partners in industry while at the same time preserving the fabric of capitalism. As Strum has noted, Brandeis came to know numerous labor leaders while working as a strike arbitrator after the turn of the century. He appreciated that they were intelligent men who had much to contribute to industrial efficiency if conflicts between labor and management could be minimized. Industrial democracy was his program for achieving this end.
Strum’s treatment of Brandeis’s labor theory is the strength of her book. Although he believed that better working conditions, higher wages, and employer recognition of unions as collective bargaining units were important, Brandeis viewed these measures as only first steps toward industrial harmony. Management and labor needed to recognize what Strum calls their “mutuality of interest.” Management-labor cooperation could be achieved by allowing workers to share not only in company profits but in corporate decision-making as well. In Brandeis’s words, “No remedy can be hopeful which does not devolve upon the workers’ participation in, [and] responsibility for the conduct of business; and their aim should be the eventual assumption of full responsibility—as in cooperative enterprises.” Harmony and realization of the worth of each individual were the keystones of his vision. If labor believed itself a full partner with industry, strikes and other costly disruptions could be eliminated, even during times of depression.
Like socialism or the single tax, industrial democracy was never taken seriously by Brandeis’s contemporaries, although recently more than a few eyebrows were raised when a major automobile manufacturer appointed a union leader to its board of directors, and workers have accepted pay cuts or have even banded together to purchase factories to prevent plant closings. Nonetheless, his response to early 20th-century social and economic upheaval was motivated by the same fear of the dual evils of concentrated power and anti-democratic tendencies that incited to action other reformers of the day. Brandeis was a late 19th-century American who clung to the ideals of republicanism when reacting to the unknowns of rapid industrialization.
And he fought for workers. The Brandeis brief may not look particularly progressive by contemporary standards. It emphasizes women’s feeble physical condition compared with men’s, and quotes such authorities as a cotton mill machine operator who told a Senate committee, “I have noticed that the hard, slavish overwork is driving those girls into the saloons.” But the brief was perfectly calibrated for the Supreme Court of its day. In appealing to the justices’ paternalistic concern for women, it found a chink in the court’s pro-business armor.
Brandeis was so enamored of facts and real-world consequences that he found himself moonlighting as a journalist. He wrote a fine series of muckraking articles on the “money trusts” for Harper’s Weekly, which were later published as the book “Other People’s Money and How the Bankers Use It.”
When President Woodrow Wilson nominated Brandeis to the Supreme Court in 1916, conservatives worried that he would inject radical new ideas into the law. He did, on subjects ranging from civil liberties to workers’ rights. (In 1937, he was part of the five-member majority that finally ended the Lochner era by upholding a state minimum wage law.) But it was his methodology, as much as his end results, that shook up the legal world. To Brandeis, every opinion — even on a subject as mundane as whether a state can require ice sellers to get a permit — was a chance to hold forth on the case’s practical importance.
For Brandeis, raw data was always key. Oliver Wendell Holmes, his distinguished senior colleague, once complained that Brandeis “drove a harpoon into my midriff by saying that it would be for the good of my soul to devote my next leisure to the study of some domain of fact — suggesting the textile industry.” Holmes protested, “I hate facts,” but grumpily took a government report along with him on his summer vacation.
The Brandeis brief today bears the truest mark of a transformative idea: as radical as it was in its time, today it looks thoroughly conventional. Generations of litigators were quick to adopt its approach. The civil rights lawyers in Brown v. Board of Education prevailed in large part because of their Brandeisian briefs that presented social science data on the effect of segregation on black children.
We are living in an era when facts, and rational analysis, are on the ropes. The president has been inhabiting a world, Ron Suskind wrote in a 2004 New York Times Magazine article, that scorns “the reality-based community.” Congress routinely adopts policies that cater to special interests, which are then justified by the sort of smarmy, fact-free spin that the comedian Stephen Colbert has labeled “truthiness.”
But courts operating on the Brandeis model have, at their best, been a check on this disturbing trend. In its proudest moments, from the civil rights rulings of the 1960s to recent decisions reining in the Bush administration’s war-on-terror excesses, the Supreme Court has insisted on focusing resolutely on the facts, and on the practical effect of the challenged policies on real people.
Decisions like these are Brandeis’s true legacy. His greatest lesson was that — as he wrote in a famous dissent, excoriating the majority for not letting government do more to battle the Great Depression — “in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles.”Continue reading the main story