Louisville beginnings
Louis David Brandeis was born on November 13, 1856, in Louisville, Kentucky, the youngest of four children of Adolph Brandeis and Frederika Dembitz, Jewish immigrants from Prague. Their families had left Bohemia after the revolutions of 1848, shaken by antisemitic riots and burdened by special taxes on Jews; Adolph wrote home from America that its progress was “the triumph of the rights of man.” In Louisville he built a grain business, and the family’s abolitionist views put them at odds with many neighbours during the Civil War.
The household was cultured, German-speaking and secular. Books, music and politics filled the dinner table, and religion played little part. The great exception was Louis’s uncle, Lewis Naphtali Dembitz, a learned lawyer, an observant Jew and an early American Zionist, who had been a delegate to the 1860 convention that nominated Abraham Lincoln. Louis so admired him that he later changed his own middle name from David to Dembitz.
Harvard’s finest student
Brandeis graduated from Louisville Male High School with top honours at fourteen. When the family moved to Europe in 1872, he studied for two years at the Annenschule in Dresden, which he credited with teaching him to think critically. Back in America, he entered Harvard Law School in 1875 at eighteen, with no financial help from his family.
The workload nearly cost him his sight; doctors advised him to give up his studies. Instead he paid classmates to read his textbooks aloud and memorised the law. He graduated in 1877 as valedictorian with what was long reported as the highest average in the school’s history. “Those years were among the happiest of my life” he recalled. After a short spell in St. Louis he returned to Boston and set up a law firm with his classmate Samuel D. Warren.
The right to be let alone
In December 1890 Brandeis and Warren published an article in the Harvard Law Review titled “The Right to Privacy.” Provoked by intrusive press coverage of the Warren family, it argued that the law should protect a person’s “right to be let alone” against the new technologies of instant photography and mass-circulation newspapers. The legal scholar Roscoe Pound later said the article had done “nothing less than add a chapter to our law” and state courts and legislatures soon built on it.
In 1891 Brandeis married his second cousin Alice Goldmark, the daughter of a physician who had emigrated from Austria-Hungary after 1848, in a civil ceremony in New York. They settled modestly on Boston’s Beacon Hill and had two daughters, Susan and Elizabeth.
The People’s Lawyer
Brandeis grew wealthy from a successful practice, and then spent much of his time on public causes, often refusing payment so that he would be free to fight for the wider principle. He campaigned for honest transit franchises in Boston, created the savings bank life insurance system in Massachusetts to give working families affordable insurance, and fought a long battle against J. P. Morgan’s attempt to monopolise New England’s railways. The press called him “the People’s Lawyer.” In 1910 he helped negotiate the “Protocol of Peace” that ended a vast strike in New York’s garment industry, where both workers and employers were largely Jewish immigrants. The Economist later called him “a Robin Hood of the law.”
In Muller v. Oregon (1908), defending a law limiting women’s working hours, he filed a brief that was short on legal argument but backed by more than a hundred pages of medical reports, factory inspectors’ findings and social data. The Supreme Court upheld the law, and the “Brandeis brief” became the model for using real-world evidence in court, later used in Brown v. Board of Education. In 1913 he wrote a series of articles attacking the power of the great banks, collected as Other People’s Money and How the Bankers Use It, and he advised President Woodrow Wilson on the creation of the Federal Reserve and the Federal Trade Commission.
The confirmation fight
On January 28, 1916, Wilson nominated Brandeis to the Supreme Court. The reaction was ferocious. Former President William Howard Taft, former Attorney General George Wickersham and a parade of former American Bar Association presidents declared him unfit; The Wall Street Journal called him not merely radical but “rabid.” Antisemitism ran openly through the opposition. Wickersham dismissed Brandeis’s supporters as “a bunch of Hebrew uplifters” and Senator Henry Cabot Lodge privately complained that Brandeis would never have been nominated were he not a Jew.
His supporters were just as determined. Lawyers, social workers and reformers who had worked with him testified on his behalf, and Roscoe Pound told the committee that Brandeis was one of the great lawyers and would one day rank with the best who had sat on the Court. When the committee asked for the customary letters of endorsement, Wilson wrote one himself, praising his nominee’s “impartial, impersonal, orderly, and constructive mind” and his “deep human sympathy.” Years later Justice William O. Douglas wrote that Brandeis had been feared because he was incorruptible, and that the Establishment’s fears were greater because he was the first Jew named to the Court.
For the first time in its history, the Senate Judiciary Committee held public hearings on a Supreme Court nominee, with witnesses for and against. After four months, on June 1, 1916, the Senate confirmed him by 47 votes to 22. He took his seat days later as the first Jewish justice of the United States Supreme Court.
Justice Brandeis
In twenty-three years on the Court, Brandeis wrote some of the most influential opinions in American law, often in dissent alongside Oliver Wendell Holmes. His concurrence in Whitney v. California (1927) argued that the remedy for dangerous speech is “more speech, not enforced silence” and is widely regarded as one of the greatest defences of free expression ever written by a justice. His dissent in Olmstead v. United States (1928), a wiretapping case, declared that the makers of the Constitution had conferred “the right to be let alone, the most comprehensive of rights and the right most valued by civilized men.” Four decades later the Court adopted his view in Katz v. United States (1967).
In New State Ice Co. v. Liebmann (1932) he described the individual states as laboratories that could try novel social and economic experiments, an image still invoked today, and in Erie Railroad Co. v. Tompkins (1938) he wrote for the Court in a decision that reshaped the relationship between federal and state law. Off the bench he quietly advised the architects of the New Deal. Today’s “New Brandeis” school of antitrust thinkers draws directly on his warnings about “the curse of bigness” the title later given to a collection of his papers.
Brandeis’s interests reached beyond American law. In October 1918 he helped Tomáš Garrigue Masaryk draft the Washington Declaration that proclaimed the independence of Czechoslovakia. He worked closely with Felix Frankfurter, his protégé and later a justice himself, on political causes. In 2009 the U.S. Postal Service honoured him on a stamp alongside Frankfurter, Joseph Story and William J. Brennan Jr.
Zionist leader
Brandeis came to Jewish public life late, in his fifties. Around 1910 he became drawn to Zionism, and in 1912 he joined the Federation of American Zionists. When the First World War paralysed the movement’s European leadership, he was elected in August 1914 to head the Provisional Executive Committee for General Zionist Affairs in New York, and he led American Zionism through the war. He argued that Zionism and American patriotism were fully compatible, and that multiple loyalties were objectionable only if they were inconsistent. He also helped organise the democratically elected American Jewish Congress and used his influence with the Wilson administration in the run-up to the Balfour Declaration of 1917. “A man is a better citizen of the United States” he said, “for being also a loyal citizen of his state, and of his city; for being loyal to his family, and to his profession or trade.”
In 1919 he visited Palestine. Later that year he broke with Chaim Weizmann over how the movement should be run, and in 1921 Weizmann’s supporters ousted his faction from the leadership of the Zionist Organization of America. Brandeis continued to fund practical projects in Palestine, and in the late 1930s pressed for Jewish immigration there as Europe’s Jews sought escape.
Last years and legacy
Brandeis retired from the Court on February 13, 1939, and died in Washington on October 5, 1941, aged eighty-four. He and his wife are buried beneath the portico of the University of Louisville’s law school, which now bears his name. Brandeis University in Waltham, Massachusetts, was named in his honour, as was Kibbutz Ein HaShofet, “Spring of the Judge” founded in 1937.
His influence is everywhere in modern American life: in privacy law and the debates over surveillance and data, in free-speech doctrine, in the use of evidence in courtrooms, in antitrust policy and in the idea of open government that his line about sunlight still sums up. He was also a pioneer simply by taking his seat. The bitter fight over his confirmation showed how much prejudice a Jewish nominee could face in 1916, and his twenty-three years of distinguished service helped ensure that no future nominee would be judged by that standard.
Sources & further reading
Louis Brandeis, Wikipedia · Louis Brandeis Supreme Court nomination, Wikipedia · Brandeis, Louis Dembitz, Federal Judicial Center · Louis Brandeis, Wikiquote · Researched from the sources above and checked against them. Spotted an error? Tell us.
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