What Would Brandeis Do?

Considering the achievement of the American Jewish legal giant, a new biography also asks what he would make of Citizens United and other contemporary issues.

Louis Brandeis in an undated photograph taken no later than 1916. Wikimedia.

Louis Brandeis in an undated photograph taken no later than 1916. Wikimedia.

Observation
Aug. 4 2016
About the author

Rick Richman is the author of Racing Against History: The 1940 Campaign for a Jewish Army to Fight Hitler (Encounter).


One hundred years ago this year, President Woodrow Wilson nominated Louis D. Brandeis as the first Jew on the Supreme Court. It was a controversial move, not least because much of the American legal establishment, as well as the business community, considered Brandeis a radical. In response, the Senate decided, for the first time in its history, to hold hearings on a Supreme Court nomination. The four-month process featured 43 witnesses; an anti-Brandeis petition from Harvard’s president and 54 prominent Bostonians; and a letter opposing the nomination from seven former presidents of the American Bar Association.

In the end, the Senate confirmed Brandeis with 47 votes in favor, 22 against, and 27 not voting. He served 23 years on the Court, and his opinions on free speech, privacy, federalism, and judicial restraint became among the most influential in American history. He was also the most prominent American Zionist of his time and played an important role in the issuance of the Balfour Declaration.

There are many Brandeis biographies—including magisterial works by Alpheus Thomas Mason, Philippa Strum, and Melvin I. Urofsky. At 208 pages, Jeffrey Rosen’s new book, Louis D. Brandeis: American Prophet, is not intended as a comprehensive biography but rather as a concise study of his thought and character, with an epilogue discussing his significance today entitled “What Would Brandeis Do?” The book is a welcome addition to the literature, but some of its conclusions are problematic.

 

Brandeis was born in 1856 in Louisville, Kentucky, a son of cultured Jewish parents who emigrated from Prague and prospered in America. They gave their children no Jewish education: the family never attended religious services or celebrated Jewish holidays. In 1875, at the age of eighteen, Brandeis enrolled at Harvard Law School, graduating two years later with the highest grades in the school’s history. In 1889—at the age of thirty-two—he argued his first case before the Supreme Court. A year later he and his law partner, Samuel Warren, published in the Harvard Law Review an article, “The Right to Privacy,” that would become the most famous essay in American legal history. In the following decades he became one of the most successful lawyers in America, while also devoting himself to the numerous public-interest representations that earned him a national reputation as “the people’s lawyer.”

In August 1912, Brandeis met for an entire afternoon with New Jersey Governor Woodrow Wilson, then planning his presidential campaign. Wilson’s principal opponent—Theodore Roosevelt—was running on a promise to regulate the monopolistic “money trusts” dominating the American economy. Brandeis persuaded Wilson that a better approach was to regulate competition so that monopolies could neither be formed nor maintained, thus protecting economic and political freedom. Wilson’s “New Freedom” became a winning campaign theme, and after the election he considered naming Brandeis his attorney general or secretary of commerce but held back in the face of expected opposition. Three years later, he not only appointed Brandeis to the Supreme Court but stood by him during the contentious hearings.

 

In recounting Brandeis’s enormous impact on American law, Rosen quotes extensively from his eloquent opinions, epitomized by his concurrence in Whitney v. California (1927) that Rosen calls “a kind of constitutional poetry.” In articulating the grounds for free speech under the First Amendment, the opinion set a new standard for the Court.

The case involved Anita Whitney, a fifty-two-year-old political activist, who had been convicted of “criminal syndicalism” for helping to organize the Communist Labor party of California and joining with it to advocate a “Dictatorship of the Proletariat.” Although Brandeis voted to affirm the conviction—a free-speech issue had not been properly raised at trial—his concurring opinion refined Oliver Wendell Holmes’s “clear and present danger” test to mean that absent an emergency, speech could not be suppressed even if “a vast majority of [the] citizens believe [a doctrine] to be false and fraught with evil consequence”:

Those who won our independence . . . believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth . . . [and] discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.. . . [The Founders] eschewed silence coerced by law.

In concluding, Brandeis wrote that it was “always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.” The “remedy to be applied is more speech, not enforced silence.”

At a symposium earlier this year, Philippa Strum underlined the significance of this conclusion:

[W]hat he is saying is the right to speak is really the right to hear, and . . . [free speech] is not so much that a person has the right to express himself or herself—although he thought that was important, too—but it is more that “We the People” have an absolute right to get every idea that is out there, because without that you cannot make intelligent decisions.

Brandeis worked on numerous drafts of his Whitney opinion. Its central concept—the relationship of liberty to happiness, and the courage that is required to permit liberty—was a conscious paraphrase of Pericles’ Funeral Oration. The opinion was instrumental in making American speech the most unfettered in the world.

Brandeis was equally eloquent, and even more prescient, about privacy. Two years after Whitney, he dissented in Olmstead v. United States (1929), a case in which the FBI had tapped a bootlegger’s telephone for months. The Court held that the Fourth Amendment prohibiting unreasonable searches and seizures had not been violated because it applied only to actions conducted on a person’s property, and the FBI had tapped telephone lines on the street rather than in Olmstead’s home. Dissenting, Brandeis noted that modern technology rendered physical trespass unnecessary:

Subtler and more far-reaching means of invading privacy have become available to the government. Discovery and invention have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet. . . . The progress of science in furnishing the government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. . . . Can it be that the Constitution affords no protection against such invasions of individual security?

It would take decades, but the Court eventually adopted Brandeis’s view that the Fourth Amendment protects people, not simply places. In his notes for his Olmstead opinion, Brandeis recorded his concern that a new technology called “television” could transmit in two directions, and thus invade the privacy of a home. As Rosen writes, he may have been wrong about TV, but he was right about the trajectory of technology.

Brandeis was a firm opponent of what he called “the curse of bigness”—the title of a collection of his writings. In his 1914 book, Other People’s Money and How the Bankers Use It, he argued that banks’ unrestricted access to such money led to abuses of power. He saw the same danger in the growth and aggrandizement of the federal government. A strong advocate of federalism, he considered the states “the laboratories of democracy,” and the proper places for political experimentation.

 

It was Brandeis’s desire to create just such a small “laboratory of democracy” for the Jews that played a significant role in his remarkable conversion to Zionism. In 1905, he had asserted that there was “no place for what President [Theodore] Roosevelt has called hyphenated Americans . . . [including] Jewish-Americans,” and that preserving differences in national origins was “disloyal.” By 1914, however, he had agreed to lead the American Zionist movement.

Rosen describes several of the key influences that led to this transformation: his discussions with Jacob de Haas, who had been Theodor Herzl’s American secretary, and his intense study of Jewish history thereafter; his acquaintance with Aaron Aaronsohn’s pioneering agricultural projects in Palestine; his mediation of the New York City garment workers strike, which pitted Jewish labor against Jewish management and left him admiring both sides; essays on cultural pluralism by Horace M. Kallen; and Alfred Zimmern’s 1912 book, The Greek Commonwealth, which convinced him that a Jewish state could emulate ancient Athens.

As Rosen notes, Brandeis’s central insight was that Zionism reflected American values. In a 1914 address, he said:

My approach to Zionism was through Americanism. In time, practical experience and observation convinced me that Jews were, by reason of their traditions and their character, peculiarly fitted for the attainment of American ideals. Gradually it became clear to me that to be good Americans, we must be better Jews, and to be better Jews, we must become Zionists.

Rosen also cites Brandeis’s 1915 contribution to the Menorah Journal, a national college publication, where he wrote in ringing tones that

Patriotism to America, as well as loyalty to our past, imposes upon us the obligation of claiming [our] heritage of the Jewish spirit and of carrying forward noble ideals and traditions through lives and deeds worthy of our ancestors.

Thus, in only ten years, Brandeis had moved from viewing preservation of a Jewish-American identity as “disloyal” to linking Americanism with the project to establish a national Jewish home in Palestine. As he told Jewish students in the Menorah Journal, “We Jews of prosperous America above all need its inspiration.”

Visiting Washington in April 1917, Arthur Balfour, the British foreign secretary, met Brandeis at a White House reception and later discussed with him potential British support for a Jewish national home in Palestine. Brandeis reviewed the issue in a 45-minute meeting with Wilson, in which the president expressed his own support. In the following months, as the British government drafted the Balfour Declaration, Brandeis played a key role. This episode both reflects and embodies the connection between Americanism and Zionism that Brandeis saw and Wilson endorsed.

 

In his epilogue, “What Would Brandeis Do?,” Rosen observes that “[a]ll of the current Supreme Court justices invoke Brandeis in different ways,” and argues that both “libertarian liberals and libertarian conservatives . . . are his natural heirs.” Unfortunately, he writes, some critics of corporate bigness on the progressive left diverge from Brandeis: they are not “equally suspicious of bigness in government,” and they “rush to embrace centralized regulations of the economy that Brandeis would have mistrusted.” Similarly, Rosen faults “some libertarian critics of centralized federal power” on the right for not equally mistrusting centralized corporate power. He concludes that libertarians on both sides would do well to derive inspiration from Brandeis, and he expresses the hope that “Brandeis’s hour” may be “coming around at last.”

The epilogue is marred, however, by a surprisingly shallow analysis of how Brandeis would approach the controversy surrounding the Supreme Court’s 2010 decision in Citizens United. In that case, a nonprofit corporation, funded by individual and corporate contributions, planned to offer a documentary critical of Hillary Clinton via video-on-demand on cable television. But federal law prohibited corporations from publicly distributing a broadcast for or against any candidate within 30 days of a primary election or 60 days of a general election. The Court held the law unconstitutional, ruling that under the First Amendment’s mandate that “Congress shall make no law . . . abridging the freedom of speech” there is no basis to suppress certain disfavored speakers, or an association of people speaking in corporate form, or entities with the financial resources to engage in public discussion.

Rosen asserts that Brandeis “certainly” would have “deplored” the Court’s decision in Citizens United. The reason, in his view, is that restrictions on corporations “implicate three of Brandeis’s greatest concerns—the peril of corporate bigness, the importance of public deliberation, and the imperative of judicial restraint.” Rosen cites Justice Ruth Bader Ginsburg, one of the dissenters in Citizens United, who told him Brandeis “obviously” would “not have been a fan of Citizens United, not at all.” But it is far more likely that Brandeis would have seen the case as one involving governmental silencing of pre-election discussion, and would have deemed it the Court’s duty to protect free speech.

While Brandeis wrote opinions supporting economic regulation of large corporations, those cases involved the reasonableness of state laws under the Fourteenth Amendment, not the exercise of an express constitutional right, much less the most fundamental one. To suggest that Brandeis would uphold legislation categorically restricting speech, during the very period the citizenry is most focused on an election, in a clear example of what he condemned in Whitney as “silence coerced by law,” is risible. Chief Justice Roberts, a proponent of judicial restraint, wrote in his concurrence in Citizens United that the Court cannot respond with judicial abstinence when faced with a law imposing a “direct prohibition of political speech.” It is hard to believe that Brandeis would disagree.

Rosen also writes that Brandeis’s “vision of cultural pluralism is more urgent than ever,” as “a balanced alternative” to (a) the “separatist tendencies of multiculturalism” and (b) the “homogenizing assimilationist pressures of Internet culture.” But he does not elaborate or cite examples, and ironically seems more concerned about cultural pluralism in Israel than in the United States. He asserts that Brandeis “would not have understood the rise of Jewish fundamentalism,” which Rosen believes “threatens Israel’s secular identity,” and he implies that Brandeis would have condemned it.

But Brandeis did not fear the expression of any view in a democratic society. In Whitney, he wrote movingly of the need for the courage to support freedom of expression even for those seeking to destroy the state. He had no fear of Anita Whitney and her comrades operating in the public square; it is unlikely he would fear the expression of “fundamentalist” views in Israel. He would more likely welcome the widest possible discourse among the citizens of the Jewish state, as they seek what he called in Whitney their “political truth”—the same process he championed in America.

While Brandeis was a progressive, he would likely part company with today’s progressives: they advocate not only laws to limit pre-election speech but rigid “speech codes,” “safe spaces” to silence disfavored views, “trigger warnings” against upsetting literature, rules against verbal and visual “micro-aggressions,” and even prosecution of those who “deny” climate change. They see states not as laboratories of democracy but as pockets of benighted resistance to their uniform national agenda. They are unfazed by a massive federal government financed with immense sums of “other people’s money.”

Last but by no means least, anti-Zionism is now increasingly at home on the progressive left, and Brandeis would clearly part company there, too. He would view the tiny Jewish laboratory of democracy in the Middle East—established on a small percentage of what was deemed Palestine at the time of the Balfour Declaration and now a vibrant democratic polity—as confirmation that Americanism and Zionism are not only complementary but urgently needed in the world. Although Rosen does not address “what Brandeis would do” about Israel today, the man he calls an “American Prophet” would undoubtedly vigorously defend it and urge contemporary progressives—Jews and non-Jews alike—to do so as well.

You have 2 free articles left this month

Sign up now for unlimited access

Subscribe Now

Already have an account? Log in now

More about: American Jewry, Brandeis, History & Ideas