Louis D. Brandeis: A Life
Melvin I. Urofsky
As a young lawyer in the late nineteenth and early twentieth centuries, Louis Brandeis, born into a family of reformers who came to the United States to escape European anti-Semitism, established the way modern law is practiced. He was an early champion of the right to privacy and pioneer the idea of pro bono work by attorneys. Brandeis invented savings bank life insurance in Massachusetts and was a driving force in the development of the Clayton Antitrust Act, the Federal Reserve Act, and the law establishing the Federal Trade Commission.
Brandeis witnessed and suffered from the anti-Semitism rampant in the United States in the early twentieth century, and with the outbreak of World War I, became at age fifty-eight the head of the American Zionist movement. During the brutal six-month congressional confirmation battle that ensued when Woodrow Wilson nominated him to the Supreme Court in 1916, Brandeis was described as “a disturbing element in any gentlemen’s club.” But once on the Court, he became one of its most influential members, developing the modern jurisprudence of free speech and the doctrine of a constitutionally protected right to privacy and suggesting what became known as the doctrine of incorporation, by which the Bill of Rights came to apply to the states. In this award-winning biography, Melvin Urofsky gives us a panoramic view of Brandeis’s unprecedented impact on American society and law.
presented of record, without advocating any particular theory for its disposition.” This did not bother Brandeis, because he saw it as asking him to take on a role he had often performed, counsel to the situation. But another line in Harlan’s letter noted, “We are of course aware of the fact that the carriers will not fail fully to present their side of the case and the Commission has felt that every effort should be made in the public interest adequately to present the other side. Would you care
frightened by the growth of large corporations, turned to antitrust activity. Still others, aggrieved by the terrible toll exacted by factory demands on human life, advocated various protective measures, including wage and hour legislation, factory safety laws, and the abolition of child labor. The list could be expanded still further, to include those who promoted urban planning, good government, prohibition, and so on. It would be rare for reformers, even those who often fought together, to
allegations, and Wilson knew him. “I have tested him by seeking his advice upon some of the most difficult and perplexing public questions about which it was necessary for me to form a judgment. I have dealt with him in matters where nice questions of honor and fair play, as well as large questions of justice and the public benefit, were involved.” In every test, the president declared, he had received from him “counsel singularly enlightening, singularly clear-sighted and judicial, and, above
involving constitutional questions and those involving common legal matters. “In ordinary cases there is a good deal to be said for not having dissents. You want certainty & definiteness & it doesn’t matter terribly how you decide, so long as it is settled.” It is usually more important, he declared, “that a rule of law be settled than that it be settled right.” One also had to weigh the effect of dissents on the relations with the other justices. “There is a limit to the frequency with which
stock: LDB to Edward McClennen, 16 February 1916. “not of the public”: U.S. Senate, Hearings Before the Subcommittee of the Committee on the Judiciary … on the Nomination of Louis D. Brandeis to Be an Associate Justice of the Supreme Court of the United States, 64th Cong., 1st sess., 2 vols. in 1 (Washington, D.C., 1916), 221 (hereafter cited as Hearings on Nomination). “already large business”: LDB, memo on House Bill 472, 28 March 1906, in id., 257. into their grievances: McElwain to LDB, 21