One hundred years ago, on January 29, 1916, President Woodrow Wilson nominated the crusading social justice lawyer Louis D. Brandeis to the U.S. Supreme Court. However, his nomination was bitterly contested and denounced by conservative Republicans, including former president (and future Chief Justice) William Howard Taft, former Attorney General George W. Wickersham, and former presidents of the American Bar Association, such as ex-Senator and Secretary of State Elihu Root of New York, who claimed Brandeis was “unfit” to serve on the Supreme Court.
The controversy surrounding Brandeis’s nomination was so great that the Senate Judiciary Committee, for the first time in its history, held a public hearing, allowing witnesses to appear before the committee and offer testimony both for and against Brandeis’s confirmation. While previous nominees to the Supreme Court had been confirmed or rejected by a simple up-or-down vote on the Senate floor – often on the same day the President submitted the nomination – a then-unprecedented four months lapsed between Wilson’s nomination of Brandeis and the Senate’s final confirmation vote.
Brandeis was accused of being a radical and anti-corporate reformer who, according to the New York Times, would lack the “dispassionate temperament that is required of a judge.”
Much of the opposition to Brandeis also stemmed from the fact that he was the first Jew nominated to the Supreme Court.Taft accused Brandeis of using his Judaism to curry political favor, and Wickersham referred to Brandeis’ supporters as “a bunch of Hebrew uplifters.”
However, those in favor of seeing him join the court were just as numerous and influential. Supporters who testified on his behalf included attorneys, social workers, and reformers with whom he had worked on cases. Harvard law professor Roscoe Pound told the committee that “Brandeis was one of the great lawyers,”who would rank among the Court’s best justices. Other lawyers who supported him pointed out to the committee that he “had angered some of his clients by his conscientious striving to be fair to both sides in a case.”
In May, President Wilson wrote a letter to the Chairman of the Senate Judiciary Committee, saying, “I cannot speak too highly of his impartial, impersonal, orderly, and constructive mind, his rare analytical powers, his deep human sympathy, his profound acquaintance with the historical roots of our institutions and insight into their spirit, or of the many evidences he has given of being imbued, to the very heart, with our American ideals of justice and equality of opportunity; of his knowledge of modern economic conditions and of the way they bear upon the masses of the people, or of his genius in getting persons to unite in common and harmonious action and look with frank and kindly eyes into each other’s minds, who had before been heated antagonists.”
On June 1, 1916, the Senate officially confirmed his nomination.
Defending free speech
Jurists are known for the opinions they render whether on the winning or the losing side. Ringing dissents often go down in history as important milestones along the road to greater freedom which may take another generation or even longer to evolve.
Brandeis weighed in on a number of cases involving freedom of speech. Many such issues arose during World War I, when groups such as the Industrial Workers of the World (IWW) and socialists such as Eugene V. Debs, argued against the war. Gilbert v. Minnesota (1920) dealt with a state law prohibiting interference with the military’s enlistment efforts. In his dissenting opinion, Brandeis wrote that the statute affected the “rights, privileges, and immunities of one who is a citizen of the United States; and it deprives him of an important part of his liberty…. [T]he statute invades the privacy and freedom of the home. Father and mother may not follow the promptings of religious belief, of conscience or of conviction, and teach son or daughter the doctrine of pacifism. If they do, any police officer may summarily arrest them.”
The case of Whitney v. California (1927) dealt with the prosecution of a woman for aiding the Communist Labor Party, an organization accused of promoting the violent overthrow of the government. In the opinion and test to uphold the conviction, Brandeis and his co-writer Oliver Wendell Holmes expanded the definition of “clear and present danger” to include the condition that the “evil apprehended is so imminent that it may befall before there is opportunity for full discussion.” According to legal historian Anthony Lewis, scholars have lauded Brandeis’s opinion “as perhaps the greatest defense of freedom of speech ever written by a member of the high court.” The opinion reads:
“Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of free speech to free men from bondage of irrational fears…. Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty….”
In his widely cited dissenting opinion in Olmstead v. United States (1928), Brandeis relied on thoughts he developed in his 1890 Harvard Law Review article “The Right to Privacy.” Now he expanded his focus to include the government itself “as a potential privacy invader.”The issue in Olmstead was the use of wiretap technology to gather evidence. Referring to this “dirty business,” he tried to combine the notions of civil privacy and the “right to be let alone” with the right offered by the Fourth Amendment, which disallowed unreasonable search and seizure. Brandeis wrote in his lengthy dissent:
“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men.”
Of course, many legal issues are decided, in their time, on a thin, sharp razor’s edge, and in the light of history Brandeis can be considered to have erred in his judgment. With a unanimous Supreme Court, he approved the restrictive Schenck v. United States decision in 1919concerning enforcement of the Espionage Act of 1917, which concluded that defendants (such as IWW activists) who distributed leaflets to draft-age men, urging resistance to induction, could be convicted of an attempt to obstruct the draft, a criminal offense. In 1927 he also approved a pro-sterilization decision in Buck v. Bell.
During the New Deal, along with Benjamin Cardozo and Harlan Fiske Stone, Brandeis was considered to be in the liberal wing of the court-the so-called Three Musketeers. Nevertheless, Brandeis remained allergic to the idea of concentration of power in federal government, and decided in several cases to limit presidential discretion, even when FDR’s clear intent was to help the nation rebound from economic disaster. In Schechter Poultry Corp. v. United States (1935), the Court voted unanimously to declare the National Industrial Recovery Act (NIRA) unconstitutional on the grounds that it gave the president “unfettered discretion” to make whatever laws he thought were needed for recover.
Brandeis also opposed Roosevelt’s court-packing scheme of 1937, which proposed to add one additional justice to the Supreme Court for every sitting member who had reached the age of seventy without retiring. “This was,” felt Brandeis and others on the Court, a “thinly veiled attempt to change the decisions of the Court by adding new members who were supporters of the New Deal,” leading historian Nelson Dawson to conclude that “Brandeis . . . was not alone in thinking that Roosevelt’s scheme threatened the integrity of the institution.”
Brandeis retired from the Supreme Court in February 1939, and died in 1941.
Brandeis University, in Waltham, Mass., founded in 1948, was named for him, one of the great secular achievements of the American Jewish community.
The U.S. Postal Service honored Brandeis in 2009 with a commemorative stamp. In the announcement about the stamp, he was credited with being “the associate justice most responsible for helping the Supreme Court shape the tools it needed to interpret the Constitution in light of the sociological and economic conditions of the 20th century.”He was “a progressive and champion of reform, [and] Brandeis devoted his life to social justice. He defended the right of every citizen to speak freely, and his groundbreaking conception of the right to privacy continues to impact legal thought today.”
Adapted from Wikipedia and other sources.
Photo: Wikimedia (CC)