By Melvin I. Urofsky, Pantheon Books, New York, N.Y. 953 pages, $40
‘I am a part of all that I have met,” declaimed Tennyson’s Ulysses. Louis D. Brandeis might have echoed those words when in 1916 President Woodrow Wilson nominated him to the U.S. Supreme Court. In “Louis D. Brandeis: A Life,” Melvin I. Urofsky, professor emeritus of history at Virginia Commonwealth University, emphasizes that upon embarking on a judicial career, his subject had already distinguished himself as a lawyer, as a reformer and as a Zionist.
Louis Brandeis spent far more time, 37 years, practicing law than he did wearing a judicial robe. He also made a lot more money. In 1879, two years out of Harvard Law School and together with a partner, he opened an office in Boston. Intelligence, diligence and skill as both advocate and counselor brought Brandeis an array of elite clients. He ascended the bench a millionaire.
Prosperity and reputation early enabled Brandeis to fulfill a youthful pledge to devote time to the public interest. He began at the local level. He opposed a streetcar company’s plan to expand its routes and extend its franchise. He disputed the capitalization of a conglomerate of gas companies. He helped set up a system of savings bank life insurance in Massachusetts, an accomplishment that, says the author, Brandeis “always considered…his most worthwhile reform.”
As time passed, the scope of Brandeis’ public-interest operations broadened. He gained a nationwide reputation as “attorney for the people.” His most notable achievement in that regard may have been his successful appearance before the Supreme Court in Muller v. Oregon (1908). Urging the constitutionality of a statute limiting the working hours of women, he broke with tradition by filing a brief laden with economic and sociological data far outweighing legal citations. Lawyers still call such a submission a “Brandeis brief.”
More than litigation went into giving Brandeis a reputation national in scope. In 1890 he co-authored “The Right to Privacy” in the Harvard Law Review. The article effectively created a new tort. By writings in lay publications, speeches and testimony before congressional committees and administrative agencies, he attacked monopoly and the “curse of bigness” and argued for reform in the banking industry. His book “Other People’s Money and How the Bankers Use It” enjoyed wide circulation for years after its publication in 1913.
The author puzzles, as will many readers, over how a man whose daughter described as “completely non-religious, a non-observant Jew,” could, beginning in 1912, enter into and soon assume leadership of the Zionist movement in the United States.
Urofsky finds a plausible answer in idealism, which he calls “a key aspect of Louis Brandeis’s nature.” To Brandeis, he maintains, “Zionist ideals of democracy and social justice reflected the same values in American life.” He reasoned that he could thus work for a Jewish homeland without compromising his loyalty to the United States.
Brandeis led American Zionism with the same enthusiasm and competence he had shown at the bar. He transformed the movement “from a moribund sideshow into a powerful component of American Jewish life.” His efforts comprised fundraising (including lavish donations from his own deep pocket), attempts to make peace among the various factions of the movement and seeking reconciliation with European Zionists.
In 1919, Justice Brandeis visited what was then called Palestine for a first-hand view of Jewish life and progress in the British mandate.
His eminence as a reformer eventually brought Brandeis into national politics. He participated in Woodrow Wilson’s 1912 presidential campaign and, upon Wilson’s inauguration, became one of his advisers. He played crucial parts in the establishment of the Federal Reserve system, the passage of the Clayton Act and the creation of the Federal Trade Commission.
All this and much more the author recounts in scholarly detail that may sometimes strike the casual reader as tedious. Be that as it may, the book comes to life in the chapter dealing with the hearings on the confirmation of Brandeis as a justice of the Supreme Court.
His reform work had made him prestigious and powerful enemies. Many of them showed up before the subcommittee appointed to consider his nomination. They called him unfit, a radical, a socialist, an unscrupulous opportunist and so forth. Anti-Semitism, not always disguised, entered into the opposition, at least one opponent labeling the nominee an “outsider.”
The nomination survived all of that and Brandeis was confirmed by the Senate, 47 votes to 22. Three progressive Republicans, including Robert La Follette and George Norris, jumped ship and voted to confirm. Only one Democrat voted against.
The book devotes several chapters to Brandeis’ 23 years on the Supreme Court. The author describes him as a believer in “sociological jurisprudence,” the belief “that the law had to reflect and take into account the realities of modern life.” That outlook clashed with “legal classicism,” the view of law as a set of immutable principles.
To begin, Brandeis’ outlook put him in the minority, but with time many of his dissents, of which he filed a total of 74, came to be adopted as law. The author concludes that “[N]o justice of the twentieth century had a greater impact on American constitutional jurisprudence.”
Urofsky pays special attention to freedom of expression, an area of law in which Brandeis habitually joined, often in dissent, his colleague and close friend Oliver Wendell Holmes. He argues that “Holmes penned memorable lines, but it would be Brandeis who put together the bases of modern First Amendment jurisprudence.”
Any responsible list of the country’s greatest jurists will include, at or near its top, the name of Louis D. Brandeis. Professor Urofsky has explained and justified that standing and has also submitted a refined portrait of the man in all of his many aspects. His work will endure as a monument to a truly extraordinary human being.
Walter Barthold has retired from the practice of law in New York City.