September 27, 2009
The Practice
By ALAN M. DERSHOWITZ
LOUIS D. BRANDEIS
A Life
By Melvin I. Urofsky
The popular parlor game of ranking our presidents hasn’t caught on for Supreme Court justices, perhaps because there are too many of them (Sonia Sotomayor is the 111th justice) or because Americans have so little knowledge of what they actually do. But if justices were to be ranked, three names would appear on the top of most lists: Chief Justice John Marshall, Justice Oliver Wendell Holmes and Justice Louis D. Brandeis. Similarly, if practicing lawyers were to be ranked, nearly every list would include John Adams, Daniel Webster, Abraham Lincoln, Clarence Darrow and Brandeis.
Notably, the only person on both lists is Brandeis. He would also be included on a list of America’s most important social reformers and innovators, having developed savings bank life insurance and new ways of practicing law. He was the co-author of what may well be the single most influential law review article in history — on the right to privacy. And he was the most significant American in helping to establish the state of Israel. All in all, this son of Czech-Jewish immigrants, who grew up in Louisville, Ky., may well qualify as the greatest legal personage in American history.
Melvin I. Urofsky — the author of this monumental, authoritative and appreciative biography of the man Franklin D. Roosevelt called “Isaiah” — would surely agree. A professor of law and public policy at Virginia Commonwealth University, Urofsky has devoted much of his career to documenting the personal and professional life of the great lawyer and justice. In “Louis D. Brandeis: A Life,” he demonstrates, deploying a Brandeisian array of factual material, why Brandeis still matters, nearly 70 years after his death. The First Amendment’s right of free expression, the Fourth Amendment’s right to privacy and the due process clause’s focus on personal liberty (rather than property) all owe their current vitality to the creative genius of Justice Brandeis, whose dissenting opinions have become the law of the land.
Today, Brandeis is seen by liberals as their patron saint because of his views on speech, privacy, liberty and social welfare, yet conservatives claim him as well, because of his commitment to judicial restraint. In many ways he defies labeling. He demonstrated through his judicial decisions that a living constitution, responsive to changing needs, is not incompatible with a modest view of the role of judges. He rejected judicial activism in favor of allowing legislatures — the voice of the people — to expand rights and extend protections to the most vulnerable. He said of the Supreme Court that “the most important thing we do is not doing.”
This was, of course, easier to say in his day, when legislatures, for the most part, were more progressive than courts. He led the Supreme Court in upholding progressive (some called it radical) legislative innovations in the areas of labor law, protection of women and fairness to the poor. But unlike many of today’s justices, who employ artificial jurisprudential constructs to further (and disguise) their political or religious ideologies, Brandeis was a judge who placed principle over politics, and who often voted to uphold legislation he personally despised, like the “big government” aspects of the New Deal. For the most part, however, the laws he upheld were of the sort he, as “the people’s attorney,” helped to design and defend.
Indeed, he developed the legal technique — called “the Brandeis brief” — that was used by progressive lawyers to support legislation in the face of constitutional challenges, especially those based on the property rights of corporations. The Brandeis brief, which has become commonplace today, not only presents the court with an analysis of legal precedents but also marshals current factual material — statistics, scientific experiments, governmental records — to demonstrate that the legislature had a reasonable basis for its actions. It is difficult to overstate the revolutionary consequences of this tactic. Before the introduction of the Brandeis brief, the law was seen by conservatives as a formal series of rules representing eternal verities, unchangeable by new circumstances. Brandeis presented a direct challenge to the old regime by demanding that the law be responsive to new realities, based on new facts.
Urofsky acknowledges that Brandeis did not invent out of whole cloth his fact-based approach to the law. Oliver Wendell Holmes, in particular, had argued that the life of the law was “experience” rather than “logic.” And experience is, of course, fact based.
Brandeis was also the heir of Jefferson and Madison, who saw freedom of expression as the foundation of democracy. But unlike Holmes, Jefferson and Madison, Brandeis was a great legal practitioner who knew how to turn theory into practice. He created enduring structures that lawyers could use to implement the ideas propounded by Jefferson, Madison and Holmes.
The impact he had on the practice of law when he himself practiced it, lucratively and effectively for over 35 years, was probably as great as the impact he had as a justice of the Supreme Court. He is one of the handful of justices — along with Thurgood Marshall, Benjamin Cardozo, William Howard Taft, Earl Warren and Arthur Goldberg — who would have been remembered by history even if he had never been elevated to the high court. (Today’s court has no one with Brandeis’s experience as a practicing lawyer — and it shows.) Remarkably, it was his innovative work as an attorney that, along with his religion, almost kept him from being confirmed by the Senate when President Woodrow Wilson nominated him to the court in 1916. Urofsky believes that his religion played less of a role than his radical approach to the law, but it is impossible to separate the two, because the bigotry of the day associated his alleged radicalism with his Jewish heritage.
One of Urofsky’s most fascinating revelations deals with Brandeis’s conversion from a Christmas-celebrating secular American of Jewish heritage to a committed Zionist and Jew. According to Urofsky, there was no single “aha” moment of revelation. Rather, Brandeis was convinced that Zionism was an outgrowth of his progressive values. The idea of Jews’ having a homeland, based on social justice and Jewish prophetic principles, seemed entirely natural to him. He poured his heart, soul, fortune and considerable energies into persuading American Jews, who were generally unsympathetic to European Zionism, that one could be a patriotic American while at the same time advocating a Jewish homeland for the oppressed Jews of Europe. His most important contribution to Israel’s establishment was in turning Zionism from a theory alien to many American Jews into a pragmatic program to rid the Holy Land of disease, to increase its agricultural production and to make it feasible for European Jews to live in peace with their Arab neighbors. There are many who believe that without Brandeis’s advocacy, the United States would not have supported the establishment of Israel.
Although this is an admiring biography, it is far from hagiographic. Urofsky presents the warts, few as there were. Brandeis’s approach to the practice of law in which he sometimes served as “counsel to the situation” — representing both parties to a dispute in an effort to achieve a just result — raised legitimate questions, as did his payments to his acolyte Felix Frankfurter when Brandeis was a justice and Frankfurter a Harvard Law professor who was promoting causes dear to both of them. But on balance, Urofsky’s Brandeis brief in support of “Isaiah’s” important place in the annals of the law and history is convincing.
Alan M. Dershowitz’s most recent book is “The Case for Moral Clarity: Israel, Hamas and Gaza.”
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