"Louis D. Brandeis: A Life": The enduring influence of a progressive judge

"Louis D. Brandeis: A Life"

by Melvin I. Urofsky

Pantheon, 976 pp., $40

Few U.S. Supreme Court justices can compare to Justice Louis Brandeis. As a lawyer, he battled some of the biggest corporate interests of his day, not only earning their respect (and business) but creating the very idea of "public interest" lawyers. He was a key leader of the early Zionist movement. Most significantly, he served as a transformative progressive who turned the Supreme Court from a focus on property rights toward privacy and liberty.

In a towering new biography, Melvin Urofsky, a history professor from the Virginia Commonwealth University, catalogs a life of monumental achievement. From a small office in Boston in the late 1800s, Brandeis challenged large railroads seeking to raise rates, banks strangling small-business owners, and other large-scale enterprises that used their power to extract ever-increasing profits. He quickly earned a reputation not only for his legal brilliance, but for embarrassing corporate officials in cross-examination by demonstrating a greater mastery of relevant corporate records than the officials themselves could muster.

Indeed, his style was defined by a relentless focus on the facts. At a time when most legal briefs contained dry discussion of abstract legal principles, he insisted on packing his "Brandeis briefs" (and later opinions) with social science research, believing that understanding the larger factual context was crucial. His approach is now commonplace.

Brandeis was nominated to the court by President Woodrow Wilson in January 1916, its first Jewish member. He endured a six-month confirmation battle, with progressives standing off against conservatives looking to settle scores (and with a big dose of barely-concealed anti-Semitism). The Los Angeles Times editorialized that the nomination was "enough to make cold chills run down the spine of every patriot of the nation," demonstrating that Glenn Beck-style irrational rhetoric is hardly new.

After confirmation, he joined a conservative court. As Urofsky recounts, those who opposed him well understood that he would arrive with "a new outlook and different experience from the old-school justices, and if his ideas prevailed, they would topple the old bastion of property-oriented classical thought."

That is, in fact, precisely what happened. Brandeis joined forces with his friend Oliver Wendell-Holmes, and together the "great dissenters" staked out positions in defense of privacy, liberty and free speech. Understanding that the law must evolve to adapt to a changing world, he rejected any attempt to fix the Constitution's meaning as unchangeable. He would have been no fan of current Justice Antonin Scalia's wooden "original intent" theory of constitutional interpretation.

Brandeis retired from the court in 1939, replaced by William O. Douglas, and died on Oct. 5, 1941, but not before seeing many of his dissenting opinions adopted by the Supreme Court as the law. Brandeis, like Oliver Wendell Holmes, John Marshall and perhaps a handful of others had a profound impact on American law, a standard that few justices — and none of those currently serving — have come close to meeting. Ironically, he was modest almost to a fault, even refusing offices in the ostentatious new Supreme Court building (which he called the "Temple of Karnak") when it opened.

In Urofsky, Brandeis finds his match. Urofsky writes beautifully, pivoting between the justice's private life, legal philosophy, and political and Zionist activism. Running more than 900 pages, including footnotes, this book is no small undertaking, but a rare treat for legal-history fans and worth every page.

Kevin J. Hamilton is a Seattle lawyer.