Book Reviews

Mr. Public Interest

Louis Brandeis–inventor of public-interest law, the right to privacy, and his famous Brief, all before he went to the Supreme Court–is worth a fresh look today.

By Michael Waldman

Tagged HistoryLouis BrandeisSupreme Court

Louis D. Brandeis By Melvin I. Urofsky • Pantheon Books • 2009 • 976 pages • $40 

Long before “progressive” was a euphemism favored by people trying to avoid the word “liberal,” the Progressive Movement defined an era of economic and social upheaval similar to ours. At the turn of the twentieth century, America faced challenges still familiar 100 years later: vast inequality, reckless business leaders, financial bust, corrupt government. The response came in a remarkable burst of civic activity and policy creativity. Progressives campaigned for the first public regulations of finance, as well as for health and safety protections, banking reforms, and environmental conservation. This agenda continues to define much of the unfinished progressive project. Yet the era from which it comes is less storied, and less studied, than other times of social change. While today’s activists and officials looking for models and inspiration are far more likely to scrutinize the New Deal or civil rights era, the turn of the last century may offer better models for the early decades of this one.

This period produced many leaders, but none more important than Louis Dembitz Brandeis. At a time when government first sought to tame overweening market forces, Brandeis was the leading legal mind behind those stratagems. For decades, he was both the nation’s preeminent lawyer and among its leading public intellectuals–a combination of David Boies and Paul Krugman, with a touch of the early Ralph Nader thrown in. Really, there were two Brandeises, each worth studying. Brandeis the social activist launched the modern regulatory state. Through legendary legal campaigns and court appearances, he found a way to persuade reactionary federal courts to uphold liberal social legislation. Like Thurgood Marshall, he would be worth our time even if he never sat on the bench. Then there is the second and more widely known Brandeis, who served on the Supreme Court for two decades, crafting a restrained jurisprudence that cleared the path for activist elected officials to reshape government’s role. Brandeis and the Progressives have much to teach today’s progressives. In the face of surging corporate power and widening inequality, they focused on structural reform and enhancing democracy–elements that must be at the heart of our progressive era (if there is to be one).

Melvin I. Urofsky’s new biography, Louis D. Brandeis, brings the jurist’s life and worldview into focus. The book evokes Robert Caro in length, if not in skill–even after 953 pages, Brandeis the man remains opaque. Urofsky implausibly downplays, for example, the impact anti-Semitism had on the lawyer’s world view or drive. But the era’s reform energy crackles. The book comes to vivid life in courtrooms and in congressional hearings, when Brandeis charged into battle with lawyers for logging companies or banks speculating with what he called “other people’s money.”

Born in 1856, Brandeis grew up in the solid, stolid milieu of Louisville, Kentucky–at 78,000 people, a large community in the middle South of that time. His family was in the grain business–striving, successful small firms of the type that dominated most of America’s economy coming out of the Civil War. “There were no large factories employing thousands of people,” Urofsky writes, “but rather many small endeavors–farms, stores, professional offices. People knew one another, their lives entwined in a strong sense of community. Later, after he had seen the devastating effects that industrialization had on American society, Brandeis would look back on what he considered an idyllic era, one free from the curse of bigness.” The Brandeises were Jewish but utterly secular, focused on education and culture. Louis was abnormally taciturn at a young age. Lean, craggy, and ascetic, he was often likened to Lincoln. As he grew he intimidated all around him, cultivating distance and earning the nickname (behind his back) of “Old Isaiah,” after the thundering Hebrew prophet.

He arrived at Harvard Law School in 1875 without ever attending college, earning one of the best records in its history; soon, he thrust himself into so many public scenes that an account of his life can resemble Ragtime with footnotes. He and his friend Samuel Warren opened a thriving commercial law practice. Almost offhandedly, they sparked an intellectual revolution in civil liberties by proposing a “right to privacy” in a famous law review article. (They alit on the need for such a right, deliciously, not because of government spies, but over their concern about early paparazzi who hounded the soirees hosted by Warren and his Boston Brahmin friends.) Brandeis began to represent small businesses against new, enlarged corporations that had found ways to squeeze out competition and extract high rates. First he took on the trolley company, which sought a monopoly with no rate regulation from Boston’s city government. Then he began a long struggle with the New Haven railroad, controlled by J.P. Morgan, which sought to monopolize rail service in New England. He served as lawyer for the muckraking journalists who exposed the “Pinchot Ballinger affair,” in which President William Howard Taft fired the country’s best-known environmental official, who had angered mining interests. He then became New Jersey Governor Woodrow Wilson’s top adviser in his quest for the presidency. After Wilson won, Brandeis helped write the laws establishing the Federal Reserve Bank and the Federal Trade Commission.

He took his stern personality and rigorous legal tools, and applied them to startling, increasingly populist ends. He pioneered the modern public-interest law organization. The Progressive era was marked by a profusion of think tanks, citizens groups, and local leagues and societies, and activists were bolstered by a plethora of new media outlets, magazines, and journals devoted to factual exposés and opinion. But Brandeis took that tea-and-cookies agitation to a new level, bringing technical expertise and managerial acumen to a field dominated by amateurs. He fought for years to reform the avaricious life insurance industry, then little more than an organized racket to fleece working-class families. He crafted a plan to let savings banks compete with insurers by selling policies. To win a necessary state law for savings bank life insurance, he created a professionalized organization to draft position papers, lobby lawmakers, send out hundreds of letters to the editor, and create grass-roots coalitions (such as with labor unions). “In the Massachusetts Savings Bank Life Insurance League,” Urofsky observes, “Brandeis created one of the first modern citizens’ lobbies, no small accomplishment.” Even more radical was the idea that a lawyer would agitate for what he regarded as the public interest, rather than a paying client. This so rattled his contemporaries that his critics called it unethical. The Brennan Center for Justice, which I lead, is directly modeled after Brandeis’s approach. So too are dozens of others, from the Natural Resources Defense Council to Human Rights First.

And, of course, he developed the famous “Brandeis Brief,” a type of argument before a court that lawyers still use today (and they are still known by that name). Dragooned into service by the National Consumers League, Brandeis represented the State of Oregon defending its law limiting working hours for women. In the face of the conservative Supreme Court’s near-theological devotion to an abstract freedom of contract, Brandeis flung facts. His brief included two pages of legal argument and 118 pages of facts–congressional reports, medical journal articles, scientific treatises, and dozens of citations to laws in other countries. Brandeis won the case. This first Brandeis Brief was the model for successful public law litigation stratagems thereafter, such as the influential psychological studies used in Brown v. Board of Education. (The original brief sits on display in the lobby of the Supreme Court today.)

Brandeis called his approach “the living law.” American law, he warned in a speech, “had not kept pace with the rapid development of our political, economic, and social ideals. In other words, is not the challenge of legal justice to conform to our contemporary conceptions of social justice?” While courts were in thrall to notions of individual liberty, new concentrations of economic power were threatening American democracy itself. “For Brandeis,” Urofsky notes, “social institutions, including economic organizations, had to be constructed to help individuals develop as responsible citizens, and the existence of large and threatening centers of economic power thwarted this goal.” His growing renown would lead him onto the biggest stage of all.

Brandeis’s emerging worldview gained its greatest prominence in the epochal 1912 campaign. Modern readers will be struck by the degree to which the contest revolved around core issues of political economy; also of note, the broad acceptance of arguments by both Theodore Roosevelt and Woodrow Wilson for regulation, even if the two sought quite different solutions. But Wilson, the New Jersey governor and former Princeton president viewed vaguely as a reformer, had little feel for political economy. So he grasped for Brandeis–the two had never met–with both hands, inviting him to his home on the New Jersey shore in August 1912 and quickly making him a confidant and chief policy adviser. Brandeis’s endorsement mattered. At his first meeting with Wilson, he told a press conference that Roosevelt’s Bull Moose Party “rests upon a fundamental basis of regulated monopoly…The party is trying to make evil good, and that is a thing that cannot be done.” With Wilson, Brandeis forged an alternative to TR’s proto-statist approach to reining in large trusts–what they branded “The New Freedom.” The New Freedom sought to break down the industrial behemoths through antitrust lawsuits and regulation, rather than government ownership (or partnership between a big state and big firms). In the words of his bestselling book, Brandeis feared “the curse of bigness,” and that included government as well as business. At the same time, Brandeis was focused on the deleterious role of finance capital in spurring monopoly and manipulating investors.

Wilson never nominated Brandeis for attorney general. He settled for the role of consigliere (or, to be more ethnologically precise, kibitzer.) “Wilson admired Brandeis as the type of lawyer he himself had once wanted to be,” Urofsky notes. When the new president first tackled the tariff–seen as a subsidy to big industrial firms at the expense of consumers and farmers–the Bostonian played a minimal role. But then Wilson tasked him to help create the Federal Reserve Board. The institution that followed was too weak, and too beholden to the bankers. But for the first time, the United States had a central bank, capable of vying with J.P. Morgan and others on Wall Street whose power relied on their control of “other people’s money.” Soon after, Brandeis helped launch the Federal Trade Commission, seeking finally to apply expertise and legalistic process to antitrust enforcement and consumer protection. All this, he did while continuing his private legal practice. If he lived today, his frequent flyer total would be impressive.

On the third day of January 1916, Brandeis was on the road again, this time speaking to a Zionist meeting in Bridgeport, Connecticut. A Boston lawyer tracked him down with a secret message from President Wilson: Would he accept nomination to the U.S. Supreme Court? Brandeis now would step onto a far wider stage. His jurisprudential impact would prove huge.

Wilson picked Brandeis partly to win the hearts of Progressives who had earlier split their votes between him and Roosevelt. It accomplished that, but the pick was the most controversial until Abe Fortas in 1968 or arguably even Robert Bork. Former President William Howard Taft called the nomination of such a radical “an evil and a disgrace.” Seven past presidents of the American Bar Association opposed it. Urofsky persuades that the Establishment howled not because they reviled him as a Jew–he was thoroughly assimilated and even celebrated Christmas–but because they saw him as a left-winger.

Ultimately, the Senate confirmed him on a 47-22 vote. Once on the Court, Brandeis distinguished himself as a foe of judicial activism–which at the time meant conservative ideologues in robes. Alongside Oliver Wendell Holmes and later Harlan Fisk Stone, he routinely dissented from the opinions of the Court, as reactionary justices continued to block progressive social legislation. Holmes was a vivid stylist, and his dissents bristled with aphorism. Brandeis’s read like, well, Brandeis Briefs–lengthy, footnoted, clogged with statistics. But he argued steadfastly that lawmakers–who had studied the facts and crafted compromises–should be the best adjudicators of policy, not judges in thrall to a highly ideological judicial philosophy. At the same time, he and Holmes began to call with increasing force for the judicial branch to protect civil liberties such as free speech. The Court began to adopt this approach–not interfering with government actions to regulate the economy, but ardently protecting individual rights–just as Brandeis left the bench in 1939. Until the Roberts Court, this view dominated jurisprudence.

Brandeis’s judicial record should sharply remind today’s progressives that “judicial restraint” is not merely a conservative bromide, but a valid constitutional posture. Over the long run, elected branches of government tend to be more responsive to social change and less solicitous of business than the (older) lawyers who inevitably dominate the bench. The most significant exception came, of course, in the area of school desegregation. In Brown v. Board of Education and its progeny, the Court imposed a national consensus on one aspect of racial justice on the outlying Southern white governments. But such moments of necessary judicial intervention absent political consensus and broad public organizing are rare. The conservative harrumphery that greeted Brandeis when he arrived on the bench has been far more typical throughout U.S. history than the interventions of the Warren Court. When nominee Sonia Sotomayor professed fealty to judicial modesty, even many of her supporters winced at what they assumed was confirmation-hearing piety on her part. In fact, energetic embrace of judicial restraint of the type Brandeis urged should become a defining goal for progressives over the next decade.

As a matter of cosmic convergence, the Roberts Court’s most startling overreach has come in the Citizens United case, issued in January 2010–a loud echo of the legal battles of the Progressive era. The Court overturned a century of doctrine, decades of statutes, the laws of 24 states and dozens of precedents when it ruled that corporations could not be barred from using shareholder funds for political expenditures. The federal legal ban on such spending was first enacted by Theodore Roosevelt and the Progressives in 1907. The Tillman Act covered contributions, but was assumed to apply to independent expenditures; that ban was made explicit in the Taft-Hartley law of 1947. It was extended by McCain-Feingold in 2003. The Citizens United Court has twisted the First Amendment to supercharge corporate speech, even as it threatens to drown out the speech of actual people. Justice John Paul Stevens’s powerful dissent ends in language that sings like Holmes but could have been argued by Brandeis: “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”

More than his time on the bench, Brandeis’s decades as an activist lawyer hold lessons for us today. The Progressives knew that the answer to their era’s economic upheavals would not come from expanded government spending and new programs alone. They focused far more on regulation than on spending. Food and drug laws, wage and hours laws, regulation of utilities, antitrust, and the creation of the Fed all sought to tame the worst excesses of capitalism. Much of President Obama’s agenda extends this approach to a modern economy. We hear echoes in the healthcare bill or the financial regulatory measure. The proposed Financial Consumer Protection Agency harkens not so much to 1970s Naderism as to turn-of-the-century consumer protection.

But there is a missing piece to the Obama agenda: a strong commitment to strengthened democracy. The Progressives recognized that a transformative political movement could not just pass programs, no matter how vital. Such a movement would have to find a way to build power, to transform the political terrain by expanding democracy. So political reform was at the heart of their agenda. The Seventeenth Amendment established direct election of U.S. senators. The Nineteenth Amendment gave women the vote. And they championed direct democracy measures, such as initiative and referendum.

Unfortunately, thus far the Obama Administration and Democratic Congress have a markedly more blinkered view. Deep democracy reforms–or significant structural changes to make government work better–simply were absent from the agenda for their first year. Obama admirably cracked down on “lobbyists” but has done little to break the hold of lobbying on Washington.

As this timely and definitive book argues persuasively, Louis Brandeis saw these same dilemmas with a clarity that feels utterly relevant today. Will the Obama era be as consequential as the Progressive era? The answer will come not only from the new government programs and spending initiatives enacted. It is up to today’s progressives to demand real reform. One response will come in the wake of Citizens United: Public funding for congressional and presidential elections, using matching funds to boost the power of small contributions. Laws to require shareholders to approve corporate spending. Even, if needed, a constitutional amendment.

But reform must go well beyond campaign money. Progressives should insist on a modernized voter registration system–universal voter registration that would add up to 65 million voters to the rolls permanently, now easily within reach due to computer databases. Other measures are needed, too, such as the National Popular Vote plan that would bypass the electoral college. And it is plain that the filibuster and other elements of the dysfunctional Congress itself must be addressed if the country is to have a chance to solve its problems. As Brandeis surely would advise were he around, it’s time to tend to the health of our democracy.

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Michael Waldman is president of the Brennan Center for Justice at NYU School of Law and the author of The Fight to Vote (Simon & Schuster, 2016).

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