Vanderbilt Law Review Volume 11 Issue 3 Issue 3 - June 1958 Article 6 6-1958 The Brandeis Brief Marion E. Doro Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Supreme Court of the United States Commons Recommended Citation Marion E. Doro, The Brandeis Brief, 11 Vanderbilt Law Review 783 (1958) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol11/iss3/6 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. THE BRANDEIS BRIEF MARION E. DORO* BioGRAPBIc SKETCH On February 13, 1939, Louis D. Brandeis wrote the following note to his Chief Executive: ' Dear Mr. President: Pursuant to the Act of March 1, 1937, I retire this day from regular service on the bench. Cordially, Louis D. Brandeis With this brief, laconic statement, he ended twenty-three years on the Supreme Court of the United States at the age of eighty-two. In frail health, but still retaining the intellectual vigor he displayed all his life, he stepped down from the bench to make way for a younger member. This act in itself was characteristic of Brandeis; his respect for the Court was so great he dared not over-stay his usefulness and impair the operation of the Court. It has been said that his career on the bench was "the great work of his life, to which all else was prelude ...."2 He was born in Louisville, Kentucky on November 13, 1856 of Bohemian-Jewish parents who had immigrated to the United States to escape the persecutions of the European revolutions of 1848. "My 3 earliest memories," he told Ernest Poole, were of the war. One exceedingly painful memory is of a licking I got in school on the morning after Bull Run. I remember helping my mother carry out food and coffee to the men from the North. The streets seemed full of them always. But there were times when the rebels came so near that we could hear the firing. At one such time my father moved us over the river. Those were my first memories. 4 At the age of sixteen he went abroad with his parents and spent the year 1872 attending lectures at the University of Vienna, and the following year he enrolled in Annen Realschule, at Dresden, Germany. * B.A., M.A., Florida State University; at the present a doctoral candidate in the Department of Political Science at the University of Pennsylvania. 1. Cited in numerous places. See MAsoN, BRAmEis: A FREE MAN's LIFE 633 (1946); N.Y. Times, Oct. 6, 1941. 2. Jackson, The Law Is a Rule for Men To Live By, in 9 VITAL SPEECHES 665 (1942). 3. From an interview published in American Magazine, Feb., 1911, and reprinted in revised form as a foreword in BRANDEIS, Busmss-A PRO- FESSION (1914). 4. At that time he was five or six years old, depending on which Battle of Bull Run he meant, July, 1861 or August, 1862. 783 VANDERBILT LAW REVIEW [VOL. 11 The Brandeis family returned to the United States in 1874 because of business losses suffered during the panic of 1873. In 1875 he entered Harvard Law School, and supported himself with the aid of a small loan from his brother and by working part-time. His friends knew him as an intense, bright-eyed and hard working young man. Gradu- ating summa cum laude, he received his law degree with special permission from the university authorities because he was not yet twenty-one. During his first year out of law school he stayed in St. Louis; he soon tired of his humdrum life in the Midwest and returned to Boston in 1879. He opened a law practice with a Harvard law class- mate, Sammuel Dennis Warren, Jr., and there he made his residence until he moved to Washington in 1916 to take a seat on the United States Superme Court. In his private practice he became a successful, wealthy and widely-known lawyer. He was never primarily interested in the accumulation of wealth and his family lived a very simple life.5 A man of conscience and great civic spirit, he gave much of his time to public service as the "peoples' attorney." In such capacity he crusaded for a better transportation system in Boston and lower service costs from the gas companies; engaged in legal disputes with various railroad companies in New England; re-organized life insur- ance companies and was generally active in public life. Suffice it to say that many big business interests did not look with great favor upon his forthright presentation of economic evils, his bold remedies and his growing contacts with labor leaders. In addition to these activities he made occasional appearances before congressional com- mittees and regulatory commissions to give information on such matters as impending bills and tariff rates. He never ceased to amaze friend and foe alike with his ability to absorb a wealth of details and facts, and present a coherent, well organized scheme of correction for a complex problem. Most important in this "prelude" to what Jackson calls the "great work of his life" is the series of briefs prepared in defense of maximum hours and minimum wage laws which he defended during the 1907- 1916 period, for the states of Oregon, Illinois, Ohio and California. These cases were the fruition of his thinking and a part of the educa- tion of Mr. Justice Brandeis. No one could know that this early career was "an apprenticeship for an opportunity."6 His appointment to the Supreme Court of the United States by President Wilson in 1916 ended his active participation in public causes, but he continued to use his influence in a more subtle fashion. 5. Mason points out that income from his law practice for the years 1901-15 was approximately $1,096,489; at the time of his death his estate was valued at $3,138,441. MASON, op. cit. supra note 1, at 691. 6. Lerner, Social Thought of Mr. Justice Brandeis, 41 YALE L.J. 1, 7 (1931). 1958] THE BRANDEIS BRIEF Brandeis' advice had been sought by many prominent figures while he was a crusading "peoples' attorney"; young people flocked to him for counsel and he responded to them in every way he could.7 This practice did not cease when he assumed his position on the Court. His weekly afternoon teas were famous for the guests he invited and the personages he attracted. The "bright young men" came to listen, though more often than not Brandeis evoked long comments from them and in return offered his views and suggestions on problems they would bring to him. "It was all part of a plan to carry on his crusade to give his ideas force and effect on a wide front."8 He im- parted much of his philosophy at these small social gatherings knowing full well that the Dean Achesons, the William 0. Douglases, the Freunds, and the Riesmans would come into their own some day. By the time the New Deal arrived there was a generation of men in all walks of life who had come under his influence, who had listened to his concepts of social and economic justice and read his philosophy in his Court opinions. They carried with them a lasting appreciation of his ideas, and when they went into their communities, their class- rooms or their government offices, they implemented his ideas of good government as a part of their own fundamental beliefs. At the time of his death the New York Times commented editorially: "Inestimable is the influence he had upon younger men, especially in the law.... Men in all walks of life sought advice from him, even after he had become a justice."9 During the last few years of his life his health was frail, and the afternoon teas diminished in size and number. His friends observed that he no longer greeted them at the door, but remained seated for the afternoon while Mrs. Brandeis watched closely and saw that he did not overtax himself. When he died on October 5, 1941, it was difficult to recall that his appointment to the Court had been hotly contested in the United States Senate for two months. No eulogy was too warm, no amount of praise seemed enough. His friends felt a deep sense of personal loss; this mystical, heroic figure was gone. But he had left a legacy "to the 7. Brandeis was always willing to give advice, especially to the young. He was apt to encourage them to remain in their local areas and make their contribution to society where they were known, accepted and happy. This, he felt, was where they could be most effective. Mason records an amusing and interesting exchange between Brandeis and Richard Neuberger, of Oregon, now United States Senator, the latter asking the former his opinion Brandeisabout accepting replied: a newspaper job with a national magazine in the East. "Dear Richard Neuberger: Stay in Oregon. Cordially, Louis Brandeis." MAsoN, op. cit. supra note 1, at 603. 8. Ibid. 9. N.Y. Times, Oct. 6, 1941. 786 VANDERBILT LAW REVIEW [VoL. 11 hundreds of young men and women who had grown up under his influence"'10 for he had "revived their faith that-in a world troubled by declining standards-right, justice and truth must remain the guiding principles of human conduct."" THE PHILOSOPHY OF THE BRANDEIS BRIEF It is important to inquire about the nature of the social and economic views of Louis D.