Louis D. Brandeis

As the vote nears on the nomination of Elena Kagan to the U.S. Supreme Court, I just finished a biography of the man who once held the seat she is likely to occupy, Louis D. Brandeis. In the history of the law in the United States, he is a giant.

The book, by Melvin I. Urofsky, is something of a doorstop, measuring at over seven hundred pages, not counting notes. But for the most part it is accessible to the general reader. Urofsky is an expert on Brandeis, having edited his letters and written extensively about a subject that was close to Brandeis, Zionism. Urofsky clearly admires his subject, but also takes him to task on things he did that would today be lapses in judicial ethics.

Urofsky structures his book around Brandeis' four careers: lawyer, reformer, Zionist, Supreme Court justice. Though he is best known for the latter position today, he had a full life before that--his nomination to the Court doesn't come until page 430. Brandeis, the son of immigrants from Prague, went to Harvard Law School and established a thriving practice in Boston. He pioneered the concept of pro bono work--he took nothing for any work he did for the public sector. He worked extensively on savings bank life insurance, and was against monopolies. His over-riding philosophy concerned the "curse of bigness," bigness in both business and government.

He argued cases before the Supreme Court, perhaps none so important as Muller v. Oregon, which argued that a state could pass laws limiting the amount of hours workers could work. There was a whole series of cases during that time that determined whether the government could step in and tell a private business how they could operate, in terms of child labor, minimum wage, or a cap on hours. Brandeis thought this was a power the government had, and his brief in Muller was a landmark on the subject.

Woodrow Wilson appointed Brandeis to the court in 1916. He was the first Jew to be nominated, and his confirmation was not easy, but not necessarily because of his religion. He probably would have a tough time being nominated today, and many of the buzz words are the same--notably judicial restraint. Brandies believed very strongly in judicial restraint, in that the court should give deference to the legislature, but he also believed the Constitution was a "living" document, which still rankles conservative original intentists today.

Brandeis was confirmed and quickly allied with Oliver Wendell Holmes Jr. Throughout the twenties they authored many important opinions, but mostly as dissents. The most lasting were in the area of civil liberties, freedom of speech, and the right of privacy, which hadn't really existed before. Brandeis called it "the right to be let alone." Over the generations many of his dissents have become accepted law.

Urofsky also covers the tension during the FDR years, when a solid bloc of conservative justices ruled many aspects of the New Deal unconstitutional. Brandeis supported many of these laws, but was aghast when Roosevelt unveiled his court-packing plan, which would have added a justice for every current one over seventy years of age. That plan was scotched, but Roosevelt would win out eventually, though, being able to replace all those conservative justices.

My favorite parts of the book deal with the workings of the Court and the palace intrigue that goes on within the chamber walls. Brandeis ended up working with William Howard Taft, who opposed his nomination, when Taft became Chief Justice (Taft believed all decisions should be unanimous, and was frequently apoplectic when Brandeis and Holmes didn't play along). There is also the curious case of Justice James McReynolds, who was so anti-Semitic that he wouldn't have anything to do with Brandeis, even to the point of not sitting next to him during the official court photograph.

There are portions of the book that didn't grab me, but those are my own prejudices, not due to the author. I still don't quite understand what savings bank life insurance is, and the several chapters on Zionism, while I'm sure interesting to a certain segment of the population, didn't do much for me.

Brandeis served until 1939, and was replaced by William O. Douglas, who was in turn replaced by John Paul Stevens, who is now being replaced by Elena Kagan. She has big shoes to fill.