while return on the gas company’s investment rose to nine percent.

In 1906, Brandeis resigned from the board of directors of the United Shoe Manufacturing Company when the company tried to monopolize the industry and used illegal methods to stop competition. Years later, Brandeis testified against United Shoe at public hearings and served as counsel for competitors seeking to prevent a monopoly of the industry. Eventually, the shoe monopoly was broken and fair competition restored. Brandeis also investigated corruption in the life insurance industry. Brandeis helped create savings-bank life insurance in Massachusetts, which provided low-cost life insurance through state-regulated banks. As with gas prices, Brandeis showed that enlightened and regulated capitalism could work for the benefit of all. The banks made money from selling the insurance, the customers gained safe insurance at reasonable prices, and in order to compete, the major insurance companies lowered their premiums. Other states adopted the program, and by 1914 Brandeis estimated that the various reforms saved Americans twenty million dollars a year.

Starting in 1905, Brandeis led a coalition of businessmen, civil leaders, and reformers in fighting the New Haven Railroad’s attempt to monopolize all rail traffic in New England by acquiring its main competition, the Boston and Maine Railroad. Brandeis opposed monopolies because he believed they were inefficient and harmful to consumers. The struggle against the New Haven monopoly lasted until 1914, when the Wilson Administration forced the New Haven Railroad to give up the Boston and Maine. During this struggle, public attacks on Brandeis became personal. Newspapers controlled by those with financial interests in the New Haven Railroad pictured him as “King Louis of New England.” Anti-Semitic caricatures of Brandeis falsely accused him of corruption.

In 1914, Brandeis published Other People’s Money and How the Bankers Use It. This extremely influential book stimulated the passage of some banking regulations. Brandeis’ major recommendations were ignored, however, until after the failure of thousands of banks in the 1930’s. Only at that point did Congress adopt the kind of legislation for which Brandeis argued in 1914.

The pro bono cases profoundly affected Brandeis’ life. Muller v. Oregon (1908) involved an Oregon statute that limited the working day to ten hours for women employees. This statute reflected a national movement to limit hours for all workers, prohibit child labor, and create minimum wages. In 1905 the Supreme Court, in Lochner v. New York, had struck down a similar statute regulating working hours for men.

In arguing the Muller case, Brandeis had few legal precedents with which to work. Lochner v. New York, the most obvious precedent, was something Brandeis had to overcome. Brandeis brilliantly met the challenge. His brief was more than one hundred pages long. Only two of those pages, however, were devoted to legal precedents and principles. The rest of the brief discussed the social facts of industrial employment. Using statistics from numerous American and foreign sources, Brandeis demonstrated the physical costs of the industrial employment of women. The brief was a masterful combination of economics, sociology, and public health data. Without overruling Lochner v. New York, a unanimous Supreme Court upheld the Oregon statute as a reasonable exercise of the state’s police powers. The Court took the unusual step of noting the importance of “the brief filed by Mr. Louis D. Brandeis.” The “Brandeis brief,” as it was called, revolutionized legal argument by legitimizing a court’s use of social science data. The Court’s decision was a personal triumph for Brandeis and a major victory for the Progressive movement in America.

In 1910, Brandeis successfully mediated a New York garment industry strike. During these negotiations, Brandeis came in contact with large numbers of immigrant Eastern European Jews. This led Brandeis to rediscover his own Jewish roots and the Zionist movement. Although born and reared Jewish, Brandeis had never been actively involved in his faith. Of his relatives, only his uncle Louis Dembitz had been a practicing Jew. Dembitz had also been an ardent Zionist even before Theodor Herzl organized the World Zionist Congress. Brandeis had obviously been influenced by his uncle, because as a young man he had changed his middle name from David to Dembitz, in honor of his uncle. In 1912, Brandeis met with representatives of the World Zionist Congress.

As a democratic movement striving to provide liberty and opportunity for an oppressed minority, Zionism was consistent with Brandeis’ own social goals. From 1914 until 1921, Brandeis was the leader of the Zionist Organization of America. Zionism was Brandeis’ only extrajudicial activity after he joined the Supreme Court in 1916. As the Holocaust loomed on the horizon, Brandeis increased his donations to the cause, giving more than a quarter of a million dollars between 1933 and 1939.

Brandeis was gradually drawn into politics. He never sought elective office and was never a regular party man. In 1912, he campaigned for Woodrow Wilson and served as an adviser to the candidate. After Wilson’s victory, Brandeis worked with the Administration on antitrust matters and drafted legislation creating the Federal Reserve System (1913) and the Federal Trade Commission (1914).

In 1916, President Wilson nominated Brandeis to the Supreme Court. As the “people’s attorney,” Brandeis had offended moneyed interests throughout the country. The American Bar Association and some elite reformers opposed Brandeis because he was not “one of the boys.” Former president William H. Taft opposed Brandeis because Taft himself wanted to be on the Court and foolishly believed that Wilson might appoint him. The Boston establishment adamantly opposed the man who had exposed the greed of the insurance and banking industries and had successfully prevented monopolies in the shoe manufacturing and railroad industries. Executives from United States Steel, the United Shoe Manufacturing Company, the New Haven Railroad, various Wall Street law firms and Boston banks, the president of Harvard University, and The Wall Street Journal opposed Brandeis. Those who had financial interests in these industries hated him because he had so often defeated them in court. They also disliked him because Brandeis was not “one of them.” Throughout the confirmation hearings, there were undertones of anti-Semitism. Brandeis was the first Jew appointed to the Supreme Court. For many Americans, particularly the elite in Boston, this alone disqualified Brandeis.

Brandeis was supported by Progressives from around the nation. While the incumbent president of Harvard, A. Lawrence Lowell, the son of a Massachusetts industrialist, opposed the institution’s alumnus, the university’s president emeritus, Charles Eliot, a renowned scholar, supported Brandeis. Many of the Republican supporters of Theodore Roosevelt rallied to Brandeis. The four-month confirmation struggle was the longest in American history. In the end, Brandeis received support from all but one Senate Democrat as well as five Progressive Republicans.

Brandeis was sixty years old when he joined the Court. He remained until he was eighty-two. Except for his last few years on the bench, Brandeis was almost always in the minority—a Progressive voice on the conservative, or even reactionary, Court. Thus, for much of his career Brandeis was a dissenter. As a lawyer Brandeis had defended legislative regulation of the economy; as a justice he usually deferred to the will of the people, as reflected in legislation. Two exceptions to Brandeis’ deference to legislatures involved early New Deal legislation and all civil liberties cases.

Brandeis supported President Franklin D. Roosevelt but, in 1935, he joined a unanimous Court in striking down the National Industrial Recovery Act because he found that Congress had exceeded its constitutional authority. This did not signal that Brandeis had become an economic conservative. Rather, he thought the act poorly drafted and overbroad. After 1936, Brandeis consistently supported Roosevelt.

When it came to the protection of individual liberty and rights, Brandeis never deferred to a legislature. In protecting intellectual and personal freedom, Brandeis thought it was the duty of the Court to protect minority views from a tyranny of the majority. It was in this area of law that Brandeis made his mark as one of the Court’s greatest justices and as one of America’s most important legal philosophers.

Brandeis’ career was marked by his desire to protect human liberty and dignity. In Whitney v. California (1927), Brandeis argued that free speech allowed a society to find truth. He declared,

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of that evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech not enforced silence.

In Olmstead v. United States, Brandeis wrote a powerful and prophetic dissent, arguing that wiretapping without a warrant constituted a “search” in violation of the Fourth Amendment. Brandeis brilliantly refuted Chief Justice Taft’s majority opinion that a wiretap did not constitute a search because there was no physical invasion of the property. Brandeis argued that the framers “knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things.” Thus, the framers “sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be left alone—the most comprehensive of rights and the right most valued by civilized men.” Brandeis declared that “men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding.” Brandeis further asserted that “to declare that in the administration of the criminal law the end justifies the means—to declare that the government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution.” Not four years following his retirement from the Court, Brandeis died, in 1941.

Summary

By his own example, Brandeis set a modern standard for high-priced lawyers taking pro bono cases. In the “Brandeis brief,” he gave lawyers a new tool and helped liberate the legal profession from a dependence on stale and dry precedents to deal with the realities of the world. He worked to make the legal profession a servant of the people and the public good and not simply the servant of the rich and powerful. As an adviser to state and federal officials, Brandeis helped shape progressive reforms. Insurance regulation, antimonopoly statutes, and banking reform all benefited from his wisdom and ideas.

On the Court, Brandeis left an unsurpassed legacy of support of civil liberties and social justice. His confirmation in the face of a widespread anti-Semitic opposition helped break down barriers for minorities in the United States. His dissents on freedom of speech and criminal law later became precedents for a more enlightened Court. People meeting Brandeis for the first time often noticed his eyes, penetrating and deep, like his mind. While of only average height, Brandeis resembled a beardless Lincoln in his sharp features. As an aging justice, he looked the part of a philosopher and prophet. President Franklin D. Roosevelt referred to him as “old Isaiah,” and like the biblical prophet, Brandeis was a foe of injustice and a friend of liberty.

Bibliography

Freund, Paul A. “Mr. Justice Brandeis.” In Mr. Justice, edited by Allison Dunham and Philip B. Kurland. 2d ed. Chicago: University of Chicago Press, 1964. Essay on Brandeis by a former law clerk who later became a distinguished law professor at Harvard Law School.

Konefsky, Samuel J. The Legacy of Holmes and Brandeis: A Study of the Influence of Ideas. New York: Macmillan Publishing Co., 1956. Traces the influence of the two great dissenters on the Court.

Mason, Alpheas Thomas. Brandeis: A Free Man’s Life. New York: Viking Press, 1946. A classic biography of Brandeis by a leading scholar in constitutional history. This is the best introduction to Brandeis.

Todd, Alden L. Justice on Trial: The Case of Louis D. Brandeis. Chicago: University of Chicago Press, 1964. A prizewinning study of the struggle to confirm Brandeis as a justice of the Supreme Court. Excellent for its details and descriptions.

Urofsky, Melvin I. American Zionism from Herzl to the Holocaust. Garden City, N.Y.: Anchor Press, 1975. This book details the importance of Brandeis to the Zionist movement in America.

Urofsky, Melvin I. Louis D. Brandeis and the Progressive Tradition. Boston: Little, Brown and Co., 1980. Places Brandeis in the context of the Progressive movement. Useful biography.

Urofsky, Melvin I. A Mind of One Piece: Brandeis and American Reform. New York: Charles Scribner’s Sons, 1971. Excellent study of the role of Brandeis in twentieth century reform.