Louis Brandeis' Partial Justice

How the famous jurist shaped-and misshaped-American law

Louis 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."

But consider the two decisions that most offended Brandeis and his progressive friends: Lochner v. New York (1905) and Adkins v. Children's Hospital (1923). In Lochner, the Supreme Court ruled that the maximum working hours provision in New York's 1895 Bakeshop Act, which forbade bakery employees to work more than 10 hours per day or 60 hours per week, violated the liberty of contract secured by the Due Process Clause of the 14th Amendment, which reads, "nor shall any State deprive any person of life, liberty, or property, without due process of law."

As Justice Rufus Peckham wrote for the majority, while New York certainly possessed the power to enact health and safety regulations (as all good progressives wanted), the maximum hours provision of the Bakeshop Act "is not, within any fair meaning of the term, a health law." Not only was the baking trade "not dangerous in any degree to morals, or in any real and substantial degree to the health of the employee," but the limit on working hours involved "neither the safety, the morals, nor the welfare, of the public."

So what was the purpose of the law? As George Mason University legal historian David Bernstein has shown, the origins of the Bakeshop Act lie in an economic conflict between unionized New York bakers, who labored in large shops and lobbied for the law, and their nonunionized, mostly immigrant competitors, who tended to work longer hours in small, old-fashioned bakeries. As Bernstein observed, "a ten-hour day law would not only aid those unionized workers who had not successfully demanded that their hours be reduced, but would also help reduce competition from nonunionized workers." So Lochner not only protected a fundamental economic right, it thwarted an act of economic protectionism as well.

Something similar happened in Adkins v. Children's Hospital, where the Court struck down the District of Columbia's minimum wage law for women as a violation of liberty of contract. This was the case where Urofsky claimed Sutherland exhibited "a complete disregard for the real world." Well, here are some facts about that world. One of the figures in the case was an elevator operator named Willie Lyons, who had earned $35 per month from the Congress Hotel. Under the new minimum wage law, the hotel would have had to pay her $71.50 per month. So they fired Lyons and replaced her with a man willing to work at her old wage. That's why she sued. As the legal scholar Hadley Arkes memorably put it, "the law, in its liberal tenderness, in its concern to protect women, had brought about a situation in which women were being replaced, in their jobs, by men."

Had the Progressives cared to look, they would have discovered all sorts of equally inconvenient facts about their various regulatory schemes. More to the point, had Justice Louis Brandeis given economic rights the same constitutional respect he gave to free speech and privacy, the Willie Lyonses of the world might still have a fighting chance in the legal system that Brandeis did so much to reshape. 

Damon W. Root ([e-mail]) is an associate editor of reason.