Louis D. Brandeis: “People’s Lawyer” Becomes Pre-eminent Supreme Court Judge

Many judges inspired me during my thirty-six years of law practice.  For example, I worked with Paul Garrity, alav ha shalom, in a legal services office in Cambridge. He went on to become the first judge of the Boston Housing Court and then a judge of the Superior Court. He left a lasting legacy of improvements in two vital areas.

The Boston Housing Authority was the landlord of 67 housing projects and managed them very poorly, harming the residents forced to live there.  Judge Garrity greatly improved their lives of residents  by ordering the Authority into receivership and overseeing improvements there.

Judge Garrity later presided over a case involving Boston Harbor. You may recall a picture of Paul in his robes standing at the water’s edge and labeled “Sludge Judge.” The harbor was shockingly polluted. Paul’s rulings forced the creation of the Water Resources Authority and prevented 43 Boston-area communities from spewing raw sewage into the harbor, sparking a cleanup that has benefited everyone in the area.

The judge who most inspired me, though, was a judge I never met. He was Louis Brandeis.

In my early law career I wanted to be like Brandeis. When I first went to law school I assumed I would become a New York lawyer in a large firm. I did not imagine that I would represent for free people who needed my help or that I would spend any part of my career in public service.

Those ideas changed while I was in law school, partly as a result of the inspiration of Brandeis. For the first four years after graduation I worked in a free legal services clinic in Cambridge located between two housing projects, representing poor people. Brandeis’s example was partly responsible for leading me on from there to spend the next seven years representing Massachusetts human service agencies.

Brandeis was also a Zionist and deeply committed to the protection of the rights of Jews. I imitated him in that as well, including in my many years as an officer of the American Jewish Congress.

President Woodrow Wilson nominated Brandeis in 1916 to serve on the Supreme Court. Wilson was deeply impressed with Brandeis as a result of working with him personally over many years. Brandeis was "one of the architects" of the Federal Trade Commission and had served as Wilson's chief economic adviser from 1912 until 1916.

Wilson described the advice he had received from Brandeis as singularly enlightening, clear-sighted and judicial, and, above all, full of moral stimulation. Wilson also praised Brandeis his impartial, impersonal, orderly, and constructive mind, his rare analytical powers, his deep human sympathy, and his profound acquaintance with the historical roots of our institutions and insight into their spirit. He described Brandeis as a genius in getting persons to unite in common and harmonious action and look with frank and kindly eyes into each other's minds, who had before been heated antagonists.

That nomination was the first time a President had nominated a Jew to the Supreme Court. And it was a brilliant choice.

Brandeis had already demonstrated his extraordinary intelligence from an early age. He graduated from Harvard Law School at the age of 20 with the highest grade average that had ever been achieved. His record was unbroken for another eight decades.

Brandeis settled in Boston. He and Samuel Warren, his classmate with the second highest average, formed a law firm that still thrives here. It’s now called Nutter, McLennen and Fish. It’s lobby includes a virtual shrine to Brandeis, with oversize pictures and a full description of his many accomplishments.

Brandeis soon became famous, both locally and beyond, through his work on progressive social causes.

Starting in 1890, he helped develop the "right to privacy" concept by writing a Harvard Law Review article of that title. Legal scholar Roscoe Pound said that Brandeis had accomplished "nothing less than adding a chapter to our law."

In "The Right to Privacy," Brandeis and his law partner, Samuel Warren, defined protection of the private realm as the foundation of individual freedom in the modern age. They summarized the increasing capacity of government and the press and advertisers to invade our privacy. For example, in 1890, when they wrote their article, photography was becoming more popular. Some advertisers would use a photo of an individual to advertise their products without the person’s consent. Brandeis argued that this is wrong and the law must provide a remedy.

This article was later called one of the most influential essays in the history of American law.

As a lawyer, Brandeis often fought against powerful corporations, monopolies and public corruption. In doing so he often declined to be paid for his work. He came to be known as the “People’s Lawyer.”

Here is one good example of a change for which he was responsible and from which we all can benefit: the creation of savings bank life insurance.

In 1905 he took a case for a committee of life insurance policy holders. His clients were concerned that their scandal-ridden insurance company would file bankruptcy and the policyholders would lose their investments and insurance protection.

He spent the next year studying the workings of the life insurance industry. He often wrote articles and gave speeches about his findings. He described the practices of the companies as "legalized robbery."

He concluded that life insurance was "simply a bad bargain for the vast majority of policyholders." This was mainly because of the inefficiency of the industry. He also learned that the policies of "poorly paid breadwinners" were canceled when they missed a payment. As a result, most policies lapsed. Only one out of eight original policyholders actually received benefits. The premium payments were serving no purpose other than to enlarge company profits.

Brandeis generated wide support for his ideas in a personal campaign of educating the public. He then created a new "savings bank life insurance" system with the help of progressive businessmen, social reformers, and trade unionists. Within two years of his first looking into this problem, the Savings Bank Insurance League had 70,000 members and Brandeis’s "face and name were appearing regularly in newspapers."

The Governor stated in his annual message his wish for the legislature to study plans for "cheaper insurance that may rob death of half of its terrors for the worthy poor." Brandeis drafted his own bill. Three months later the "savings bank insurance measure was signed into law." He always said this bill was one of "his greatest achievements."

President Wilson’s nomination of Brandeis to the Supreme Court was bitterly contested. This was due in large part to anti-Semitism, which was out in the open in 1916. Anti-Semitism caused even one member of the Court, Justice James Clark McReynolds, to be appalled that a Jew had been nominated.

McReynolds was a blatant anti-Semite. Once Brandeis had joined the Court, McReynolds refused to speak to him for three years. McReynolds continued that animosity throughout Brandeis’s tenure, and even after. When Brandeis retired in 1939, McReynolds would not sign the customary dedicatory letter to a resigning justice that the rest of the judges sent to Brandeis.

Brandeis was no stranger to anti-Semitism. He had suffered plenty of prejudice from the students at Harvard Law School. They constantly saying to him things like, “Brandeis, you’re a really smart guy! You could go far in life if you weren’t a Jew. Why don’t you convert?”

By his final year of school, Brandeis’s brilliance had become indisputable. He was invited to join the Law School’s honor society. This was the first time that the elite organization had ever accepted a Jewish member.

On the evening of his induction, Brandeis took the podium and gazed out upon his audience.  He began this way: “I am sorry,” he said, “that I was born a Jew.”

The room exploded with noise as his fellow students erupted in enthusiastic cheering. “Finally he has seen our point,” you could hear the crowd murmur.

When the furor finally died down, Brandeis continued: “As I say, I am sorry I was born a Jew. But only because I wish I had the privilege of choosing Judaism on my own.”

Brandeis’s words were met with uncomfortable silence. And then, one by one, members of the honor society began to stand up.

Brandeis fully expected his colleagues to walk out of the room in protest. He braced himself for their rejection.

Instead, awed by their classmate’s conviction and strength of character, Brandeis’s fellow students remained glued to their places. They gave the newest member of their ranks a standing ovation.

The controversy surrounding Brandeis's nomination was so great that the Senate Judiciary Committee, for the first time in its history, held a public hearing on the nomination, allowing witnesses to appear before the committee and offer testimony both in support of and in opposition to Brandeis's confirmation.

Previous nominees to the Supreme Court had been confirmed or rejected by a simple up-or-down vote on the Senate floor. This often happened on the same day the President sent the nomination to the Senate. In Brandeis’s case, four months elapsed between the nomination and the vote, longer than ever before.

Brandeis was eventually confirmed by a vote of 47 to 22.

His opinions were, according to legal scholars, some of the "greatest defenses" of freedom of speech and the right to privacy ever written by a member of the Supreme Court.

Brandeis’s ideas were not always accepted when he first joined the Court, but some of them went on to become accepted law.

One of his most quoted decisions was a dissent in a 1928 case called Olmstead v. United States. This was a prosecution of bootleggers during Prohibition. Federal agents gathered evidence by tapping the phones of five men. The agents had not obtained a warrant from a court. What the agents did was a crime.

At trial the defendants objected to this illegally collected evidence, but the trial court admitted it. The defendants appealed, claiming the federal agents had violated their rights under the Fourth Amendment to the Constitution.

That amendment guarantees to the people “the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

The Supreme Court upheld their convictions by a vote of five to four. The Court held that the Fourth Amendment did not apply to these wiretaps because there had been no physical intrusion into the homes or offices of the defendants and no “papers or effects” had been searched or seized.

The primary dissenting opinion was written by Brandeis. He said that the Constitution had to be understood with reference to the purposes of each provision. It was not enough to consider only the particular kinds of actions that might have been possible when the Constitution was adopted.

He said this about the purpose of the Fourth Amendment:

The makers of our Constitution understood the need to secure conditions favorable to the pursuit of happiness. The protections thus guaranteed include the right to life and an inviolate personality -- the right to be left alone -- the most comprehensive of rights and the right most valued by civilized men.

Brandeis lived to see many of the ideas that he had championed become the law of the land. His spirited, eloquent defense of free speech and the right of privacy have had a continuing, powerful influence upon the Supreme Court and, ultimately, upon all of us.

For example, in 1965, in a case called Griswold v. Connecticut, the Supreme Court ruled that the Constitution protected a right to privacy. The case involved a Connecticut law that prohibited the use of contraceptives, even by married couples. The Supreme Court invalidated the law, ruling that it violated the "right to marital privacy."

Just eight years later, in Roe v. Wade, the Court concluded that the right to privacy extended to a woman's decision to have an abortion.

The issues that Brandeis identified have come into even sharper focus after 9 11. In response to the attack that day, our government undertook a secret and extremely broad surveillance program in which the government ignored laws that guarded us against unlimited wiretapping.

In 2008, after the secret program was revealed, Congress passed a law that gives the government the right to read our email and listen to our telephone conversations if the other party is outside the U.S. They can do that without a warrant. That law remains in force today.

But just last month the Supreme Court agreed to hear a challenge to that law. One of the grounds for that challenge is the same claim to a right of privacy that Brandeis identified in his law review article 120 years ago.

Brandeis retired from the Supreme Court in 1939. He died in 1941 following a heart attack. His influence has continued right down to the present day. We will be forever in his debt for the changes in American law for which he was responsible.

Next week my wife, Alice, and I will again welcome our cousin Alissa from Michigan after her summer break. She is returning to this area to continue her studies at a local college in Waltham. It always pleases me when I see her sweatshirt with the name of the college on it: Brandeis.

According to its website, Brandeis University reflects the ideals of academic excellence and social justice that Justice Brandeis personified. And we can all agree with the university’s  motto: “Truth, Even Unto Its Innermost Parts.”