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A New Look at the Far-Reaching Influence of Louis D. Brandeis

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A New Look at the Far-Reaching Influence of Louis D. Brandeis Published by the Bolch Judicial Institute at Duke Law. Reprinted with permission. © 2021 Duke University School of Law. All rights reserved. JUDICATURE.DUKE.EDU 76 BOOK REVIEW VOL. 100 NO. 4 The mind of a prophet A new look at the far-reaching influence of Louis D. Brandeis ne hundred years after he was by Jewish settlers prior to the forma- appointed to the Supreme tion of the state of Israel. OCourt we have the pleasure In comparing Brandeis with of an absorbing and insightful analysis Thomas Jefferson, Rosen first focuses of the philosophies and thoughts of upon their common economic and Louis Brandeis, a man who played political philosophies. Both were a leading role in America’s affairs determined to protect individual as a lawyer, judge, and leader of the liberties and the economic opportu- Zionist movement. nities of ordinary workers, farmers, In American Prophet, author Jeffrey and producers by restricting the Rosen, professor of law at George economic and political power of Washington University, has produced monopolies. Brandeis articulated his an unconventional biography of advocacy of capitalism and his oppo- Louis Brandeis. Readers are warned sition to monopolies in his influ- that those who seek a full account of ential essay “Other People’s Money Brandeis’ life should read biographies — And How The Bankers Use It” such as Alpheus Thomas Mason’s (Other People’s Money), published Brandeis: A Free Man’s Life, Philippa in 1914 and the focus of a separate Strum’s Louis D Brandeis: Justice for the chapter in Rosen’s book. People and Melvin I. Urofsky’s Louis D But the comparison also transcends Brandeis: A Life. Rather than provide their political and economic philoso- a detailed biographical account of phies. Rosen points out that Brandeis, Brandeis’s extraordinary life, Rosen like Jefferson, strongly believed in examines the thought processes that the authority of state legislatures underpinned the justice’s actions and superior courts. Brandeis’ faith and decisions. Rosen also provides in federalism was on full display in an intriguing analysis of the value of Louis D. Brandeis: American Prophet his opinion in Erie Railroad Co. v. 1 Brandeis’ philosophies for contemporary by Jeffrey Rosen Tompkins, which reflected the essence society and the continuing influence of Jeffersonian federalism. Rosen YALE UNIVERSITY PRESS 2016 of his legacy, particularly on Supreme notes that Brandeis and Jefferson both Court Justices Ruth Ginsburg, Stephen firmly believed in the education of all Breyer, and Elena Kagan. Rosen divides New Deal legislation, the President is said as a means of protecting the basic princi- his book into an introduction, four inter- to have expressed surprise at the court’s ples of American government. weaving chapters, and an epilogue, each unanimity and asked, “Well what about Like Jefferson, Brandeis also appears of which provides a standalone account of old Isaiah?” He was told that Brandeis had to have had an unfortunate blind spot in the key events that shaped the philosophies sided with his brethren on the court. relation to matters of race. As a conse- and thoughts of Louis Brandeis. The comparison of Brandeis with Isaiah quence, Brandeis displayed a degree of goes further: As Rosen explains, Brandeis racial ambivalence when he sided with the ISAIAH AND JEFFERSON behaved like the Old Testament prophet. majority of the Supreme Court in every Rosen begins by comparing Brandeis with For example, he warned President Roosevelt major race case decided during his tenure. the prophet Isaiah and Thomas Jefferson, that his First New Deal reforms would (Although it was not a case involving a bold and intentionally thought-provok- bring the President into sharp conflict with race, Brandeis even joined with Justice ing comparison. Rosen weaves into his the Supreme Court. Rosen also skillfully Oliver Wendell Holmes Jr. in his infamous narrative the name by which Brandeis develops this comparison when analyzing opinion in Buck v Bell2 legitimizing a state was known in some circles. Thus we are the role that Brandeis played in shaping statute authorizing the compulsory steril- reminded that, when on May 27, 1935, the the Balfour Declaration of the United ization of disabled people.) Rosen suggests Supreme Court struck down three aspects Kingdom’s support for the creation of a that Brandeis’ apparent indifference of President Franklin Roosevelt’s First Jewish state and the occupation of Palestine towards racial equality contrasted markedly Published by the Bolch Judicial Institute at Duke Law. Reprinted with permission. © 2021 Duke University School of Law. All rights reserved. JUDICATURE.DUKE.EDU JUDICATURE 77 with his views about women’s suffrage, In 1905, Brandeis ownership of a fundamental utility. which he came to fully support. In 1905, Brandeis started assembling Rosen also correctly recognizes the started assembling his his ideas about “industrial co-operation” limits of these comparisons. For example, ideas about “industrial and laying the foundation for his theory unlike Jefferson, Brandeis was a meticu- co-operation” and laying that industrial and political democracies lous manager of his personal finances. He depend on employees and voters continu- lived a frugal life and, as a consequence, the foundation for his ing to educate themselves. Brandeis left a sizeable estate. Jefferson, on the other theory that industrial and referred to this as men having the “oppor- hand, spent well beyond his means and political democracies tunity to develop their faculties.” Brandeis’ was fortunate to avoid bankruptcy after depend on employees theories about labor markets evolved at leaving the White House. Another clear “ both practical and theoretical levels, Rosen point of difference between Brandeis and and voters continuing writes. For example, in the celebrated Jefferson that Rosen touches upon but does to educate themselves. case of Muller v Oregon,3 he persuaded not develop concerns Brandeis’s remarkable the Supreme Court to depart from the indifference to the separation of powers philosophy that underpinned its Lochner4 when he continued to provide advice decision declaring that limits on working and guidance to the executive branch of cousin, Alice Goldmark. Their court- hours were unconstitutional, and instead government after his appointment to the ship was swift. They became engaged in to uphold an Oregon state law setting a Supreme Court. Jefferson fully appreci- October 1890 and married in March 1891. maximum for the number of hours women ated the importance of judges maintain- Rosen suggests Brandeis’ views concern- could work. Brandeis succeeded in that ing strict independence from the other ing the dangers of economic monopoly case by compiling an exhaustive brief of branches of government. For reasons Rosen evolved during a period when, as an facts and sociological data from within does not explore, Brandeis did not hesitate attorney, he appeared to be willing to America and Europe on the impact of long to counsel Presidents Woodrow Wilson, simultaneously represent the interests of working hours on women. This was the Herbert Hoover, and Franklin Roosevelt both labor and management in a role Rosen birth of the Brandeis Brief. while serving on the Supreme Court. Rosen calls a kind of “Jeffersonian/McKinsey The development of Brandeis’ labor and describes this practice as “questionable consultant.” Rosen explains that Brandeis economic theories further evolved through at the time.” This is an understatement. attempted to identify what both parties to the publication of his essays “Business Although Brandeis lived during an era in a dispute wanted and, after fully immers- — A Profession,” published in 1914, which leading politicians moved seamlessly ing himself in the facts, devised creative and “The Constitution of the Minimum to high judicial office, he appears to have solutions that served the best interests of Wage,” published in 1915. In the first consistently breached basic conventions both parties. This highly unusual prac- essay, Brandeis explained that increased restraining judges from engaging in the tice is illustrated by a 1902 case in which productivity was entirely consistent with affairs of the other branches of government Brandeis was consulted by a New England the enhanced health and well-being of — a practice of which Jefferson would not shoemaker who wanted to persuade his employees but that monopolies were a have approved. employees to accept a cut in wages with- curse that the state may ultimately have to out going on strike. Brandeis immersed control through strict regulations. THE CURSE OF BIGNESS himself in the details of the employer’s In his minimum wage paper, Brandeis In chapter 1, Rosen describes the arrival in business methods and concluded the best argued that the Oregon legislature was America of the parents and other members solution was for the employer to plan correct in regulating the maximum hours of the Brandeis family, their establishment production on a more regimented and of work for women employees. Judges in Louisville, the birth of Louis Brandeis consistent basis, thereby increasing the should uphold legislation, he argued, and his siblings, and the family’s return hours of work available to the employees. unless driven to the conclusion that the to Europe for a three-year period in 1873 Two years later, Brandeis undertook legislation in question was “completely following the collapse of Louis’ father’s his first crusade against monopolies when irrational.”
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