Louis D. Bran­deis: Amer­i­can Prophet

Jef­frey Rosen
  • Review
By – June 20, 2016

Ide­al­is­tic, deeply eth­i­cal, and com­mit­ted to unflinch­ing moral stan­dards, Louis D. Bran­deis — Old Isa­iah” to Pres­i­dent Franklin Roo­sevelt — had a vision of democ­ra­cy prac­ticed at its high­est lev­el that drew, accord­ing to Nation­al Con­sti­tu­tion Cen­ter direc­tor Jef­frey Rosen, on Brandeis’s inter­est in ancient Greek his­to­ry and the think­ing of Thomas Jef­fer­son. To com­mem­o­rate the hun­dredth anniver­sary of Brandeis’s con­fir­ma­tion as a Supreme Court jus­tice, Rosen offers an intel­lec­tu­al biog­ra­phy that demon­strates Brandeis’s fore­sight in expli­cat­ing issues that are still at the heart of polit­i­cal and con­sti­tu­tion­al debate.

Ear­ly in his career, Bran­deis emerged as a cham­pi­on of the work­ing man and small busi­ness own­er. In his home state of Mass­a­chu­setts, he fought against the entrenched cor­rup­tion of pub­lic util­i­ties and life insur­ance com­pa­nies and backed leg­is­la­tion that ben­e­fit­ed work­ers. He argued against cor­po­rate cap­i­tal­ism and con­sol­i­da­tion, warn­ing that a finan­cial oli­garchy — sym­bol­ized by J. P. Mor­gan and oth­er invest­ment bankers — threat­ened both the Unit­ed States econ­o­my and democ­ra­cy itself. As an eco­nom­ic advi­sor to Woodrow Wil­son, Bran­deis helped shape the administration’s pol­i­cy toward monop­o­lies, notably the Clay­ton Antitrust Act, the Fed­er­al Trade Com­mis­sion, and the Fed­er­al Reserve. His influ­ence can be seen, too, in the Bank­ing Act of 1933, gen­er­al­ly called the Glass-Stea­gall Act. Bran­deis also opposed big gov­ern­ment, reject­ing, with the rest of the Court, Franklin Roosevelt’s ear­ly New Deal ini­tia­tives, and favored judi­cial restraint, express­ing his trust in the fed­er­al sys­tem in a 1932 dis­sent that advo­cat­ed for states’ exper­i­men­ta­tion in social and eco­nom­ic issues.

Whit­ney v. Cal­i­for­nia (1927), a land­mark defense of free­dom of speech and thought, sums up Brandeis’s deeply held con­vic­tion that informed debate led to informed deci­sions: the great­est men­ace to free­dom is an inert peo­ple.” Bran­deis also laid the foun­da­tion for the right to pri­va­cy in a Har­vard Law Review arti­cle writ­ten with his law part­ner, Samuel War­ren, prompt­ed by pho­tog­ra­phers who invad­ed the sacred precincts of pri­vate and domes­tic life.” In argu­ing a case before the Supreme Court in 1908, Bran­deis based his brief not on legal abstrac­tions but on lengthy inves­ti­ga­tion into the social and sci­en­tif­ic facts of the case. An inno­v­a­tive approach, the Bran­deis brief is now a mod­el for judi­cial argument.

A sec­u­lar Jew, Bran­deis came to the lead­er­ship of the Amer­i­can Zion­ist move­ment in his fifties. Intro­duced to Zion­ism by Theodor Herzl’s Amer­i­can sec­re­tary, Jacob de Haas, Bran­deis began an inten­sive study of the move­ment. Con­vinced of its goals, he suc­cess­ful­ly orga­nized and raised funds, pro­mot­ing the Amer­i­can Zion­ist cause and press­ing Wil­son to accept the Bal­four Dec­la­ra­tion. In the years that fol­lowed, Bran­deis main­tained his efforts, inten­si­fied by ris­ing anti­semitism in Europe, with both Pres­i­dent Hoover and Pres­i­dent Roosevelt.

In Brandeis’s long and mul­ti­fac­eted career as activist lawyer, Supreme Court jus­tice, and Amer­i­can Zion­ist, Rosen under­scores Brandeis’s life­long pas­sion for and ded­i­ca­tion to social jus­tice, free­dom of thought and speech, and an informed cit­i­zen­ry. Brandeis’s faith in self-edu­ca­tion and informed deci­sions may seem over­ly opti­mistic in the face of today’s cor­po­rate pow­er and polar­ized media and some of his opin­ions are open to ques­tion, but his unwa­ver­ing quest for jus­tice and open exchange of infor­ma­tion should remind read­ers of their respon­si­bil­i­ty in a democ­ra­cy. Rosen gives read­ers the oppor­tu­ni­ty to absorb Brandeis’s breadth of inter­ests and intel­lect and to encour­age their own action. 

Relat­ed Content:

Maron L. Wax­man, retired edi­to­r­i­al direc­tor, spe­cial projects, at the Amer­i­can Muse­um of Nat­ur­al His­to­ry, was also an edi­to­r­i­al direc­tor at Harper­Collins and Book-of-the-Month Club.

Discussion Questions