Judging Justice Brandeis

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."