Louis Brandeis’ Partial Justice
How the famous jurist shaped—and misshaped—American law
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GoogleLouis D. Brandeis: A Life, by Melvin I. Urofsky, Pantheon Books, 976 pages, $40
In June 1928, the Harvard law professor and future Supreme Court justice Felix Frankfurter received a letter from his patron and ally, Supreme Court Justice Louis Brandeis. In it, Brandeis gave the perfect quick description of the constitutional philosophy he had been honing during the previous five decades, first as one of America’s leading lawyers and then on the nation’s highest court, where he sat from 1916 until 1939.
“In favor of property,” Brandeis wrote, “the Constitution is liberally constructed—in favor of liberty, strictly.” In other words, when it came to laws restricting property rights and economic freedom, the courts should defer to the judgment of lawmakers and vote to uphold the vast majority of regulations, a practice known then and now as judicial restraint. But when it came to laws restricting “liberty,” by which Brandeis meant free speech, the right to privacy, and other civil liberties, the courts should carefully scrutinize each law and, if they detected the slightest whiff of unconstitutionality, strike it down without hesitation.
That double standard, which asks the courts to favor some rights over others, has dominated the American legal system since the late 1930s, essentially leaving economic liberty at the mercy of state and federal lawmakers while “fundamental” rights receive aggressive judicial protection. As Melvin Urofsky, a historian at Virginia Commonwealth University, helps explain in his exhaustive and sympathetic new biography, Louis D. Brandeis: A Life, no one did more to bring about this uneven state of affairs than Brandeis himself.
Born in 1856 to a family of wealthy Bohemian immigrants in Louisville, Kentucky, Louis Brandeis “had the good fortune,” Urofsky writes, “to live in an age when the causes that mattered to him could be shaped by a man with a powerful vision and the intellect and personality to transform ideas into action.” We call that age the Progressive Era, named after the idealistic reformers who drastically expanded the size and scope of the regulatory state between roughly 1890 and 1920. After graduating from Harvard Law School and establishing himself as one of the country’s wealthiest and most successful lawyers, Brandeis was soon “counted among the preeminent progressives of the era.”
A brilliant attorney and skilled political operative, Brandeis left an impressive record. As a judicial champion of free speech and the “right to be let alone,” he has had few equals on the bench. He was the author of several landmark free speech opinions, but his greatest achievement arguably came with the 1928 case Olmstead v. United States, where the Supreme Court considered government use of a warrantless wiretap in the prosecution of Seattle bootlegger (and police officer) Roy Olmstead. Writing for the Court’s 5-to-4 majority, Chief Justice William Howard Taft upheld the conviction, arguing that wiretapping did not amount to an invasion of Olmstead’s home by the authorities and that Olmstead’s private conversations were not protected by the Fourth Amendment’s guarantee of “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
Brandeis saw things differently, and his dissent revolutionized Fourth Amendment law. “The makers of our Constitution,” he wrote, “conferred, as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.” It hardly mattered “that the intrusion was in aid of law enforcement.” As Brandeis explained, “The greatest dangers to liberty lurk in insidious encroachments by men of zeal, well-meaning but without understanding.” By the late 1960s, the Court finally came around to this position. In the 2001 case Kyllo v. United States, Justice Antonin Scalia relied on Brandeis’ reasoning to strike down the government’s warrantless use of thermal imaging to search for signs of marijuana cultivation in the defendant’s home.
Urofsky suggests that Brandeis’ sweepingly libertarian dissent “should be read every day by government officials, including presidents,” and it’s hard to disagree. Yet for all the eloquence of his Olmstead opinion, when it came to the “insidious encroachments” of the regulatory state Brandeis was all too happy to defer to “men of zeal.”
The most vivid example of this double standard came five years later in the case of New State Ice Co. v. Liebmann (1932). While the facts behind that case have mostly been forgotten, Brandeis’ colorful dissent produced one of the most quoted passages in American jurisprudence. “It is one of the happy incidents of the federal system,” Brandeis wrote, “that a single courageous State may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country.”
At issue was a 1925 Oklahoma statute granting a handful of companies the exclusive authority to manufacture, sell, and distribute ice. Under the law, anyone who wanted to enter the ice business had to first justify his plans by providing “competent testimony and proof showing the necessity for the manufacture, sale or distribution of ice” at all proposed locations. In other words, upstart ice vendors faced the virtually impossible task of securing the government’s permission to compete against a state-sanctioned ice monopoly.
That’s the “courageous” experiment Brandeis waxed so poetic about. But what’s so “novel” about a business currying favor with the government in order to suppress competition? That’s one of the oldest tricks in the book. Contrast Brandeis’ quick deference to the state with conservative Justice George Sutherland’s majority opinion striking the monopoly down. “In our constitutional system,” Sutherland wrote, “there are certain essentials of liberty with which the state is not entitled to dispense in the interests of experiments.”
Exactly. As his Olmstead dissent showed, Brandeis sometimes shared this skepticism of state power—at least when it came to state “experiments” on the rights he held dear. Just one year before New State Ice Co., in the case of Near v. Minnesota, Brandeis joined the Court in striking down a Minnesota defamation law as a violation of the freedom of the press. So much for allowing a courageous state to serve as a laboratory for bold experiments.
It was Sutherland’s majority opinion in New State Ice Co., not Brandeis’ famous dissent, that got it right. “In [Near v. Minnesota] the theory of experimentation in censorship was not permitted to interfere with the fundamental doctrine of the freedom of the press,” Sutherland wrote. “The opportunity to apply one’s labor and skill in an ordinary occupation with proper regard for all reasonable regulations is no less entitled to protection.”
Unfortunately, it was Brandeis, not Sutherland, who won out in the end. While Sutherland was fighting a rearguard action in defense of economic liberty, Brandeis stood at the vanguard of a sweeping new legal movement that advocated a “sociological jurisprudence,” which meant the law should adapt to new social and economic “facts.”
Brandeis made a big deal out of that little word, facts, and Urofsky gets a lot of mileage out of it as well, writing that the facts put forward by Brandeis and his allies “embarrassed the assumptions of conservative advocates of substantive due process and liberty of contract, and so were ignored”; that laissez-faire lawyers and judges maintained a “deliberate ignorance of the facts of industrial society”; and that one of Sutherland’s opinions exhibited “a complete disregard for the real world.”
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Somehow I am reminded of the Jack Benny joke--that when an armed robber demanded, "Your money or your life!," Mr. Benny paused for quite some while and replied, "Just a minute. I'm thinking."
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Root certainly provides a good capsule of history in these and related pieces, but I wonder: what does he want the reader to conclude from his exposition? Does he seriously think that the public would, or should, tolerate a Supreme Court that struck down wage-and-hours laws with the same exactness that it strikes down free-speech limits?
I also seriously doubt that there is such a wide discontinuity between civil liberties and economic rights before the Supreme Court. True, speech-censorship fares poorly under the Court's 1st Amendment jurisprudence, but most of the other civil liberties in the Bill of Rights are extremely under-enforced. Prison conditions remain barbaric; a savage regime of capital punishment remains in force; there is almost no consequence to violating 4th-Amendment rights; well-nigh harmless herbal highs and retail sex work remain under brutally-enforced punitive prohibitions. I would say that our economic liberties are subject to the same deep discount as most of our civil liberties, excepting the conspicuous outlier of free-speech rights (and free speech itself arriving at its extensive current protections only in the last 50 years after fits and starts).
Put another way, I would say that the problem is not so much that economic rights fall short of 1st-Amendment standards; it is that economic rights fare as poorly as important 2nd, 4th, 6th and 8th Amendment rights.
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In other words there is no more importance placed on rights than on limits of governmental powers.
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Look, trade and profit might be a social necessity for future generations, but it's dirty and shameful and commercial intercourse should only occur in a committed, lifelong relationship between an employer and an employee.
While extremists might suggest that our society's wanton over-commercialization will bring Gaia's wrath upon us in the form of hurricanes and other natural disasters, most of us accept the need for some freedom "in the boardroom". However, we also have to accept that reckless and irresponsible commercial activity is a threat to public health and social order. Consider how much advertising kids are exposed to on TV, on the radio, or even (perhaps especially) online. Parents can try to use ad-blockers or fast-forward past commercials, but it's almost impossible to keep our kids completely innocent of the world of trade. The first amendment exists to protect political speech and set journalists at mainstream newspapers above the law -- it was never intended to protect something as coarse and degrading as commercial speech, and it certainly doesn't give advertisers free reign to expose children to these things.
How many more families will be torn apart before we understand how these so-called "rights"* are destroying our society? How many more teenagers will experience their first job not in a safe, rewarding union position, but in a car (delivering pizza) or awkwardly fumbling around in the storeroom of the Gap? How many kids will consume, heedless of the consequences, and end up with the overwhelming responsibility of a large credit card debt -- and of those, how many will take the easy way out and have a bankruptcy? (Food for thought: studies have shown that getting a bankruptcy can have a negative impact on their ability to have a credit card debt later in life when they are more prepared to take care of it.)
Frankly, some freedoms cost our children -- our future -- too much to be worth protecting. We don't need to buy more cheap shit from China than Chad deems acceptable. We don't need to give deadbeat employers a chance to bail on their faithful employees for an attractive younger worker, just because they're "overpaid", or "incompetent", or because they "slept through their whole shift". We don't need to sacrifice our childrens' chance to see true athleticism in person in Barclays Center (once they become incredibly wealthy), just so they can be forced to grow up in blighted middle class slums. If attaining the society our children deserve means the end of these "rights", then so be it. Will anyone really miss them once they're gone?
* The phrase "right to property" never appears in the Constitution. Did our Founders really intend for us to have such a right, when it obviously did not exist in their day?
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I only want to say ... (sniff) That's beautiful.
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Well, of course, but ice cream has no bones.
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...At issue was a 1925 Oklahoma statute granting a handful of companies the exclusive authority to manufacture, sell, and distribute ice.... -
He says Brandeis set a double-standard of judicial restraint: That it should be used when considering economic freedom but should…
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I've never thought about this issue in such a way. just really need time to think.
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This was a very interesting article. Louis Brandeis was an amazing supreme court justice who made some legendary decisions.
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That was a 1923 case in which the Supreme Court struck down a law that required employers to pay female employees a certain minimum wage. So, of course, the net effect was that it prevented many women workers from getting a legal guarantee that they would be paid that minimum wage. But I have no other knowledge about what effect it had, so I would ...
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Protecting our first amendment is crucial to America, and all of it's citizens. Freedom of speech, freedom to bare arms, amongst other things. I mean could you imagine in today's day and age not being able to say what you want when you want? I know I can't. I'm a free spirit. I need to voice my opinion. It makes me wonder how business phone systems would work if we didn't have all the rights we have today. I notice a lot of people taking advantage of this, like the tea baggers out in Washington. They look like fools, and have no idea how to run a country. At least not like Louis Brandeis. This man would be ashamed of how the tea baggers are acting. What a pitiful sight they are.
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I mean could you imagine in today's day and age not being able to say what you want when you want? I know I can't. I'm a free spirit.
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