Jeffrey Rosen: Why Louis Brandeis Matters

[Jeffrey Rosen is the legal affairs editor for The New Republic.]

• Melvin I. Urofsky, Louis D. Brandeis: A Life (Pantheon, 955 pp., $40)

I.

In 1916, Herbert Croly, the founder and editor of The New Republic, wrote to Willard Straight, the owner of the magazine, about the Supreme Court nomination of Louis Brandeis. Croly enclosed a draft editorial called “The Motive of Class Consciousness,” and also a chart prepared by a lawyer in Brandeis’s office showing the overlapping financial interests, social and business connections, and directorships of fifty-two prominent Bostonians who had signed a petition opposing Brandeis’s nomination. There are five circles on the chart delineating the various hubs of the Brahmin oligarchy: the Somerset Club, banker, State Street, Back Bay resident, and large corporation connections. On one side, the chart connects each of the signers of the petition, led by Harvard President Abbot Lawrence Lowell, to each of the five hubs; on the other side, the signers are connected to each other. “I want you to understand right away that this chart and article will not be published without your consent,” Croly assured Straight.

Neither the chart nor the article ultimately appeared in TNR. Straight had worked for Brandeis’s nemesis J. P. Morgan as the Morgan Bank’s representative in China, and he refused to associate the magazine with “ideological recriminations against his friends and social acquaintances,” according to an explanation accompanying the chart, which is now displayed in the current editor’s office. But although Straight confirmed the power of what Brandeis called “our financial oligarchy” by killing the chart, the magazine continued to strongly supported his nomination. During the confirmation fight, Croly, Walter Lippmann, and Felix Frankfurter wrote vigorous responses to the attacks on Brandeis, and Brandeis later joked to Learned Hand that TNR should bear at least some responsibility for his confirmation.

During the past hundred years, the magazine has continued to champion the principles that made Brandeis the greatest constitutional philosopher of the twentieth century: opposition to the curse of bigness, in corporations and government; devotion to judicial restraint in cases involving economic regulations; judicial vigilance in cases involving free speech and civil liberties; and an enthusiasm for Zionism. But this is an especially appropriate time to evaluate Brandeis’s legacy. The nomination of Elena Kagan to Brandeis’s seat on the Supreme Court comes at a time when progressives are rediscovering the virtues of judicial restraint, as conservatives rush to court to challenge their political defeats in areas ranging from corporate campaign spending to health care reform and economic oversight. And a masterful new biography by Melvin Urofsky offers all the biographical details necessary for reassessing Brandeis’s uncanny relevance.

Urofsky’s book is the culmination of a career of invaluable scholarship on Brandeis. It is comprehensive, fair-minded, balanced, and altogether illuminating about the man who, in Urofsky’s words, remained—throughout his four careers as a lawyer, reformer, Zionist, and jurist—“the idealistic pragmatist, one whose faith in time remained great.” This is a definitive biography of Brandeis for our time. While Urofsky does not examine Brandeis’s contemporary relevance, he provides the biographical details necessary for asking and answering an increasingly urgent question: what does Brandeis mean today?

As it happens, he means a great deal. Brandeis, who predicted the crash of 1929 and would have predicted the crash of 2008, was the most far-seeing prophet of economic regulation in an age of financial crisis and the most ferocious critic of “the curse of bigness” in an age that anticipated “too big to fail.” More than any other Supreme Court justice of the twentieth century, he can instruct us in the need to translate constitutional values in an age of technological change. And as the leader of the American Zionist movement, he was the most prominent advocate of a vision of cultural pluralism that remains more salient than ever in an age of globalization and technological homogenization.

II.

After Jefferson, Brandeis was the most important American critic of bigness, in business and government; and his views about the need for citizens to achieve their potential in small-scale communities reflected his own upbringing and background. He was born in Louisville, Kentucky in 1856, the son of a wholesale grain merchant who had fled Prague after the revolutions of 1848. His parents prized books and music, and were not observant Jews—the Brandeis children exchanged Christmas cards and were chastised by members of the Jewish community in Louisville for riding on Yom Kippur. From his father, Brandeis absorbed the idyllic vision of a small businessman who, through hard work on a human scale, could provide for the needs of his employees, his family, and his community. He also learned about the dangers of the big banks who gambled with “other people’s money”: his father was wiped out in the Panic of 1873, after the collapse of Eastern banks left several of his clients bankrupt.

Brandeis’s father then took the family to Europe for three years, to show his children their roots. After studying at the Annen-Realschule in Dresden, where he learned the importance of mastering facts, Brandeis returned to America and shone at Harvard Law School, earning the highest grades in the history of the school. His closest friend on the faculty was James Bradley Thayer, the acolyte of strenuous judicial deference, and he was also stirred by Emerson and Thoreau. After law school he set up a law practice in Boston with his classmate Samuel Warren, a Boston aristocrat, with whom he wrote, in 1890, “The Right to Privacy,” published in the Harvard Law Review, one of the most famous law review articles in American legal history. It was inspired, according to Brandeis, by Warren’s “deep-seated abhorrence of the invasions of social privacy” by the instant camera and the tabloid press.

In thirty-seven years of law practice, Brandeis became one of the most successful lawyers in America, hailed as “the people’s lawyer” for representing the interests of family businesses and minority stockholders in fights against the rapacious monopolies of the Gilded Age. But although Brandeis came to be a leader of the Progressive movement, he saw himself as fighting for what Urofsky calls the traditional view of the relationship between the commonwealth and private businesses, in which the state defended the public interest, financial probity, and the accurate valuation of corporate property. By the turn of the century, however, this view was under siege by the modern view, championed by Wall Street bankers, which saw stock as an uncertain commodity that investors bought at their own risk. According to this view, widespread in the Gilded Age, the state had no role in regulating corporations beyond preventing outright fraud.

Brandeis cast himself as “counsel to the situation,” a kind of Jeffersonian McKinsey consultant, representing the interests of both labor and management, and his crowning achievement as a reformer was savings bank insurance in Massachusetts, which identified an evil—the exploitation of poor workers by rapacious insurance companies—and a pragmatic, small-scale, legislative solution (selling insurance at fair prices through savings banks) that avoided heavy-handed government regulation. Brandeis considered the result “a perfect reform.” He would have been suspicious of the centralizing tendencies of the Obama health care bill.