Judging Justice Brandeis

Damon W. Root | September 30, 2009

At the Volokh Conspiracy, David Bernstein carefully debunks Alan Dershowitz's recent New York Times' review of Melvin Urofsky's biography of progressive lawyer and Supreme Court Justice Louis Brandeis. According to Dershowitz, "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." Yet as Bernstein explains, "Brandeis was no great hero of the Fourth Amendment," nor was he a hero of personal liberty under the Due Process Clause:

...For example, in Carroll v. United States, 267 U.S. 132 (1925), the Supreme Court upheld a warrantless search of a car on suspicion of transporting alcohol.  The majority, including Justice Brandeis, concluded that automobiles are distinct from private dwellings for Fourth Amendment purposes....  More generally, the most consistent advocates of Fourth Amendment protections against the excesses of Prohibition enforcement came from several of the "conservative" Justices, especially Justice Pierce Butler, with Brandeis consistently voting in favor of the government....

With regard to the due process clause and personal liberty,  Brandeis had little to do with the application of the due process clause to non-economic rights.  The pioneer in this regard was [conservative] Justice James McReynolds, who wrote the Court's seminal opinions in Meyer v. Nebraska, Pierce v. Society of Sisters, and Farrington v. Tokushige.  Brandeis joined all of these opinions, but he also made it clear in private conversations with Justice Felix Frankfurter that he supported limiting the Due Process Clause to procedural matters, or even repealing it entirely.  If the Court was going to insist on applying the clause to substantive matters, however, Brandeis thought that educational freedom and other personal liberties should be given as much weight as economic concerns.

In short, it's hard to see how Brandeis gets credit for "the due process clause's focus on personal liberty," except, again, that his presence in the majority in these cases allowed the Warren Court to rely on them, rather than ignore or dismiss them as products of the reactionary liberty of contract era.

I'd also add that every review of the book I've seen stresses Brandeis' famous introduction of the so-called Brandeis Brief, which was basically a long collection of facts, statistics, quotes, and assorted data designed to bolster one side of a case. Dershowitz hails the brief for presenting "a direct challenge to the old regime by demanding that the law be responsive to new realities, based on new facts."

But there's a darker side to those "new facts." Brandeis filed the brief on behalf of the state of Oregon in the 1908 Supreme Court case Muller v. Oregon. At issue was a state law banning women from working more than 10 hours per day in a laundry. The Brandeis Brief was thus dedicated to proving that women required special protection by the state. More specifically, Brandeis argued that since women were responsible for bearing future generations, their bodies were in some sense collective property. "The overwork of future mothers," Brandeis wrote, "directly attacks the welfare of the nation."

The Court agreed with Brandeis, declaring, "As healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race." How's that for women's liberation! At least Dershowitz didn't try claiming that feminism owes its "current vitality to the creative genius of Justice Brandeis." 

Comments

Alan Vanneman|9.30.09 @ 1:02PM|#

Right on! And I know for a fact that Oregon women are so bitter, so very bitter, about not being able to work more than 10 hours a day in a laundry! A dark day! A dark day indeed!

|9.30.09 @ 1:19PM|#

It's no surprise that a "progressive" of the day would support more government. That's what "progressive" meant back then (and today as well, pretty much). Prohibition was a progressive cause, and "protecting" women for the good of society would fit right in, too.

I recommend Jonah Goldberg's provocatively-titled but fascinating book Liberal Fascism for more background on the Progressive era.

Paul|9.30.09 @ 2:16PM|#

Right on! And I know for a fact that Oregon women are so bitter, so very bitter, about not being able to work more than 10 hours a day in a laundry! A dark day! A dark day indeed!

You have absolutely no concept of the dangers of precedent, do you?

Paul|9.30.09 @ 2:21PM|#

about not being able to work more than 10 hours a day in a laundry!

For instance, if we could get Maria Cantwell to work fewer than ten hours a day, that's precedent I can get behind! Afterall, I hear tell she's a woman!

Paul|9.30.09 @ 2:24PM|#

And that fuckstick Hillary Clinton? Yeah, getting her to quit working altogether? I'm sold on the progressive idea that these fragile waifs aren't fit for long, hard days. Get Hillary back in the bedroom and makin' babies, I say. Oh wait...

Mad Max|9.30.09 @ 2:31PM|#

If Brandeis is to be given credit for joining majority opinions written by others, he should certainly be given credit for Justice Oliver Wendell Holmes' 1927 majority opinion in the 8-1 decision of Buck v. Bell, which upheld Virginia's eugenic sterilization law in the following language:

'We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.'

Holmes added that 'Three generations of imbeciles are enough.'

Holmes was not simply exercising judicial restraint toward the legislative process. As the language of his opinion indicated, he affirmatively approved of eugenics legislation. A law professor who wrote a book about Justice Holmes said that eugenics was Holmes' 'only political cause and was obviously is in line with his Darwinism. Holmes' eugenic views were in fact more extreme than those of other eugenics enthusiasts of his time. Others talked about sterilizing "imbeciles" while Holmes advocated executing unfit babies.'

Paul|9.30.09 @ 2:39PM|#

Shh, Mad Max, it fucks up the narrative.

|9.30.09 @ 3:19PM|#

It's the legal liberal's version of the Whig View of History.

I'm not sure that Bernstein is entirely right to say that the "conservatives" were significantly better on liberty, but it certainly was more complicated than the caricature like to pretend.

Paul|9.30.09 @ 3:21PM|#

I'm not sure that Bernstein is entirely right to say that the "conservatives" were significantly better on liberty

I came to the conslusion years ago that it's very dangerous to become a fanboy of any particular judge... 'cause at some point, you're gonna find something ugly, or get disapponted.

Attorney|9.30.09 @ 3:32PM|#

It's the legal liberal's version of the Whig View of History.

Yup.

MNG|9.30.09 @ 6:13PM|#

The only issue in Buck v. Bell was whether Buck had been afforded due process. Noone entertained a substantive due process challenge, and there simply is no explicit constitutional language that would bar the practice there. Butler, who was Catholic, dissented silently because there was no legal argument he could make at the time.

Thank goodness good liberals came along and established a healthy substantive due process right in bodily integrity that would today prevent the sterilization. The only bad thing for Max is that this same right protects women who exercise it to have abortions or those who want to engage in homosexual sodomy...

MNG|9.30.09 @ 6:16PM|#

This is always a fun game, where you take some justice who was liberal for his time, and then point out where he failed to be as liberal as some of the now widely accepted positions of society today. Of course we are at these widely accepted positions in large part because of the groundwork these liberals laid, but no matter, they should be roundly criticized for where they fell short compared to us today. Of course the conservatives on the bench at the time were ruling the same way on these positions, but they are not dug up and excorciated for it.

What's interesting is to see where Brandies and Holmes were able to overcome the authoritarian positions a majority on the bench were taking, for example in the area of free speech, association and privacy.

|9.30.09 @ 6:23PM|#

Of course the conservatives on the bench at the time were ruling the same way on these positions, but they are not dug up and excorciated for it.

No they weren't. You both didn't read the post, and you're adopting the Whig view of history. He also gives examples of the "conservatives" voting according the modern sensibilities.

|9.30.09 @ 6:27PM|#

Did you even read what he said about Justice McReynolds, MNG? Did you go to the linked post, and see that in Carroll v. United States, 267 U.S. 132 (1925) Brandeis voted for the majority that said that cars were not your home, by McReynolds and Sutherland, viewed as "conservatives," dissented?

As he mentions, Justice Pierce Butler, another "conservative," was the justice on the Court most likely to defend the Fourth Amendment when it came to that popular modern movement of Prohibition.

The Whig View of History is just not true here. History is not a endless march upwards, filled with "good guy" liberals and "bad guy" conservatives.

|9.30.09 @ 6:29PM|#

For example, it's unambiguous that the same "conservatism" that caused the Catholic Church to oppose abortion also caused to strenuously oppose eugenics. Catholic majority countries didn't adopt eugenics.

It's not the case that while the "liberals" were bad by our standards, they were better to or equal than the "conservatives" on all issues, even from a modern liberal perspective. It's far more complicated than your Manichean view.

But for MNG, you're either with him, or against him.

MNG|9.30.09 @ 6:43PM|#

John
Do you really want to hash out McReynolds record on liberty compared to Brandeis? We can if you want, but if you don't know what you are talking about now would be an ideal time to say so.

BTW-I don't think history is good and bad guys. Any liberal would have to see the positions held by liberals in the past as "bad"; that is the nature of liberalism, it constantly pushes the envelope. A liberal in 1930 is a conservative in 2009...

MNG|9.30.09 @ 6:45PM|#

OK, let's start with Olmstead v. US. So, what was up with ol' McReynolds, Freedom Fighter?

http://en.wikipedia.org/wiki/Olmstead_v._United_States

MNG|9.30.09 @ 6:46PM|#

McReynolds was the author of the case that stunted the 2nd Amendment for decades, US v. Miller

MNG|9.30.09 @ 6:51PM|#

McReynolds joined the majority in Buck v. Bell

How about first Amendment law?

Check out Brandeis vs. McReynolds in the following major cases:

Whitney v. California
Abrams v. US

MNG|9.30.09 @ 6:53PM|#

We can do Butler, Liberty Lover next if you want some more shuttin' up.

MNG|9.30.09 @ 6:59PM|#

"It's not the case that while the "liberals" were bad by our standards, they were better to or equal than the "conservatives" on all issues, even from a modern liberal perspective."

For what its worth I not only agree with this statement, but I'm of the opinion that in some areas the MODERN conservatives are better than the MODERN liberals. The Court is a nuanced place, not like Glenn Beck v. Rachel Maddow, and it has always been so it seems.

However, this "hey, liberal Holmes or Brandeis were really TEH EVIL" is bullshit of the highest order. They were wrong a lot, and conservatives on the court were right a lot. But they on the whole left better legacies for liberty loving folks.

And ask yourself, if your view is right, then why are there no posts about teh evil McReynolds, or even better, Taft?

|9.30.09 @ 8:07PM|#

MNG-

You know that I agree with your general point. It does work both ways. There are just no justices who consistently voted liberty.

How about looking at Justice Harlan, the 1st. On the positive side, there is his dissent in Plessy. On the negative, is his dissent in Lochner. In Lochner he wrote:

"We are not to presume that the state of New York has acted in bad faith. Nor can we asume that its legislature acted without due deliberation."


One might ask, what about the Louisiana legislature, didn't it act in good faith and after due deliberation?

MNG|9.30.09 @ 8:48PM|#

I am a huge fan of both Harlans!

MNg|9.30.09 @ 8:50PM|#

My point LM is, why the constant dump on Brandeis and Holmes? I'm as willing as the next man to talk about their defects, but why no posts on the numerous conservative justices of the same period?

|9.30.09 @ 9:03PM|#

MNG-

I agree. Whether its Taft, Mcreynolds or earlier, Justice Fields.

As for Brandeis, I can certainly find comfort in his Olmstead dissent.

|9.30.09 @ 9:57PM|#

And here at Reason: Astro's comment on Damon W. Root's review of the article at the Volokh Conspiracy on David Bernstein's careful debunking of Alan Dershowitz's recent New York Times' review of Melvin Urofsky's biography of progressive lawyer and Supreme Court Justice Louis Brandeis.

Got that?

/meh