One hundred years ago on June 1, Louis Dembitz Brandeis was confirmed as the first Jewish justice to the U.S. Supreme Court.
Justice Brandeis remains one of the giants of American jurisprudence. But his legacy extends beyond the law books. In the words of his most recent biographer, Jeffrey Rosen, Brandeis was “the Jewish Jefferson”—a champion of liberty and the greatest critic of what he called “the curse of bigness” since the author of the Declaration of Independence.
Brandeis shared Jefferson’s faith in the agrarian ideal—small communities of independent yeoman farmers, free from the corrupting influences of money, commerce, and urbanization. In his later years, he would become an ardent Zionist, largely because he believed that this ideal could best be realized in Palestine.
Like Jefferson, Brandeis opposed bigness in all its incarnations: big business, big labor, and big government. As an advisor to President Woodrow Wilson, Brandeis promoted passage of the Clayton Antitrust Act of 1914, and the creation of the Federal Trade Commission and the Federal Reserve. He believed that government should if possible prevent the emergence of monopolies, rather than trying to break them up after they became established.
Later, his ideas would influence passage of the Glass-Steagall Act of 1933, which separated commercial banks from investment banks, and the Robinson-Patman Act of 1936, which aimed to protect small businesses from discriminatory pricing. He was sympathetic to unions, but he opposed the Industrial Workers of the World (nicknamed the “Wobblies”), a radical organization that wanted to lump all workers into one big union.
As for big government, Brandeis believed in balancing federal power with state power. He is credited with being the first to describe the states as “laboratories of democracy.” And while he was a progressive, he voted with a unanimous court in 1935 to strike down the National Industrial Recovery Act and other elements of the First New Deal because they created unchecked, centralized federal authority. (When President Franklin Roosevelt was stunned to learn that even “old Isaiah” had voted with the majority, Brandeis sent him a hint, through an intermediary, as to what it would take for future New Deal measures to pass constitutional muster.)
As a lawyer, Brandeis invented the “Brandeis brief”—the first legal brief to rely more on scientific data and social science than on precedent. Brandeis would consistently maintain that “nobody can form a judgment that is worth having without a fairly detailed and intimate knowledge of the facts.”
This attitude would shape his approach to constitutional law. As Professor Rosen puts it, “Brandeis provides a model for citizens today who are searching for an alternative to the rigid originalism championed by some Roberts Court conservatives, and also for an alternative to the untethered ‘living constitutionalism’ of some Warren Court liberals … Brandeis believed that the values of the founders were immutable, but had to be translated into a very different world in light of dramatic changes in society, technology, and economics.”
Brandeis’ “living originalism” is perhaps best illustrated by one of his most famous opinions—his dissent in the 1928 case of Olmstead v. U.S.
During Prohibition, federal agents had begun tapping telephones in order to catch violators. Olmstead, a former policeman turned successful bootlegger, had been caught in the net. In his defense, he argued that wiretapping violated the Fourth Amendment, which guarantees the right of people to be secure in their “persons, houses, papers, and effects.”
This was first case in which the Supreme Court had to consider the constitutionality of electronic searches. Speaking for the majority, Chief Justice William Howard Taft took an originalist approach to the question. Taft held that, as adopted, the Fourth Amendment forbade only warrantless searches and seizures accompanied by physical trespass. In this case, federal agents had not trespassed on Olmstead’s property; they had placed the wiretaps on the phone lines outside his house. Moreover, Taft concluded, conversations were not tangible “effects” that could be searched and seized.
Brandeis vigorously disagreed. The authors of the Fourth Amendment, he maintained, had not anticipated the possibility that “subtler and more far-reaching means of invading privacy” would become available to law enforcement officers. “Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.”
If the court found for the government in this case, Brandeis warned, worse was likely to follow: “The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.”
While the founders could not have anticipated the telephone, wrote Brandeis (or, we may add, the Internet and cyber snooping) they clearly intended to guarantee for all Americans a degree of privacy incompatible with the use of warrantless wiretaps. Said Brandeis: “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness … They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.”
Brandeis was in the minority in Olmstead. But nearly forty years later, in Katz v. U.S., the Supreme Court would overturn Olmstead with only one dissenting vote.
The brilliance of Brandeis’ reasoning, coupled with his passionate devotion to liberty, explains his enormous influence on American constitutional law—an influence that continues to this day. Three sitting Supreme Court Justices—Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan—acknowledge Brandeis as the model for their own jurisprudence.
Like Thomas Jefferson, Louis Brandeis survives.
Hal Gordon, who wrote speeches for the Reagan White House and Gen. Colin Powell, is currently a freelance speechwriter in Houston. Web site: www.ringingwords.com.
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