Melvin Urofsky - Louis D. Brandeis: A Life

I n 1920 the Harvard 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 Hudsons 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 Brandeiss naturehis 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 navet, 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 problemeither as a lawyer or as a citizenhe 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, they remain noteworthy for his refusal to give up the belief that men of goodwill, once they knew all of the facts in a case, would be able to reach a just solution fair to all parties. To those who labored in the vineyard of democratic righteousness, as it were, Brandeis offered strong support; to those who would use their power to prey upon the weak, who would distort the values he held dear, he proved an implacable foe. While some critics have lampooned his fear of bigness and his desire to maintain a small-unit economy as out of touch with modern reality, recent abuses in the banking system as well as the size of multibillion-dollar mergers remind us that Brandeis did not fear bigness because of size, but because of the effects it could have upon society, the economy, and the individual. The scandals we have seen in the highest levels of government and the contempt some of our elected leaders have shown for the Constitution remind us of the need for moral leadership and idealistic visions.

Born a little more than four years before Fort Sumter, Louis Dembitz Brandeis died just a few weeks before Pearl Harbor. In his eighty-five years he saw the Union dissolve and rejoin, railroads span and unite the nation, entrepreneurs build great factories and then combine into gigantic companies, a war for imperialism, and a war to make the world safe for democracy. He chose to become a lawyer, helped to change the practices and business of the profession, and then demonstrated how law could be used as an instrument of reform. A nonpracticing Jew who did not believe in religion, he became head of the American Zionist movement in his sixth decade and transformed it from a moribund sideshow into a powerful component of American Jewish life. He saw the work of rebuilding Palestine into a modern Jewish homeland in its most idealistic terms, and set about trying to achieve that goal by paying attention to the most basic and mundane details. He argued that judges needed to take the facts of modern life into account in their decisions and taught them how to do so. In his more than two decades on the Supreme Court he established important bases of our modern jurisprudence, including a right to privacy and the rationale for why free speech is important in a democratic society. Even when he saw how the law could be twisted to achieve the goals of narrow-minded and selfish men, he never lost faith in the ideal of rule by law.

The biographer of such a man should have no trouble explaining his importance to the times in which he lived. Historians of the legal profession can easily identify his contribution to the development of the modern law office, the practice of counsel to the situation, and the establishment of pro bono work as an important element of a lawyers obligation to the community. Social and political scientists see Brandeis as a key figure in the progressive movement, a man respected by such diverse reformers as Theodore Roosevelt and Jane Addams, Robert La Follette and Florence Kelley. Students of American Jewish historyeven while wrestling with the question of why a man who ignored religion in general should suddenly become interested in Zionismhave no doubts about the impact his ideas made on defining the relation of American Jewry to world Zionism and to the Jewish state. For those who examine the Supreme Court, Brandeis remains one of the great justices in the nations history, the author of important opinions that continue to shape American jurisprudence.