The Magazine

The Brandeis Effect

Close study leads to deep admiration for the justice.

Oct 12, 2009, Vol. 15, No. 04 • By G. EDWARD WHITE
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After seven months he regretted the decision, and when his classmate Samuel Warren encouraged him to come back to Boston, Brandeis--after mulling matters over and gathering information, in what had become his characteristic approach to decision-making--decided to make the move. He first took a clerkship with Chief Justice Horace Gray of the Supreme Judicial Court of Massachusetts while waiting to be admitted to the Massachusetts bar. That came more quickly than usual: Brandeis started work for Gray at the beginning of July 1879 and on Gray's recommendation was admitted to the bar, without any examination, on July 29. He continued to work for Gray in the mornings and devoted the rest of his time to establishing the firm of Warren and Brandeis. By the spring of 1880 the firm was well launched.

Fast forward to June 1, 1916, when Brandeis's nomination to the Supreme Court was finally confirmed by the
Senate. He had been nominated by Woodrow Wilson on January 28. Unlike most Supreme Court nominations at the time, that of Brandeis resembled a controversial, 21st-century nomination. His opponents, who were mainly outside the Senate, attacked him on a variety of grounds, including professional ethics. Former President William Howard Taft characterized Brandeis as "a muckraker, an emotionalist for his own purposes, a socialist, prompted by jealousy, a hypocrite, a man who is .  .  . utterly unscrupulous [and] of infinite cunning .  .  . of great tenacity of purpose, and, in my judgment, much power for evil." Taft himself would be appointed chief justice of the United States five years later and would serve with Brandeis for nine years. He never revised his opinion of Brandeis.

Taft's comments have often been held up as an example of the anti-Semitic dimensions of opposition to Brandeis's nomination, but in many respects they were accurate. Brandeis was a muckraker. He had been one of the gentlemanly reformers of late 19th-century Boston who sought to expose and attack corruption in municipal government. He was an impressive advocate, capable of drawing on emotional as well as intellectual arguments. He favored the sort of increased governmental regulation endorsed by early 20th-century Progressives, a posture he shared with Wilson. He could be cunning and devious in his strategies.

The characterizations of "socialist" and "prompted by jealousy" were exaggerations, and "utterly unscrupulous" and having "much power for evil" said more about Taft than LDB. But even the term "hypocrite" was not mere diatribe. Brandeis's nomination provoked bitter hostility from some of those who knew him well because they were fearful of his potential agendas once on the Court, and his skill in pursuing those agendas. They were right to be fearful. For persons like Taft--intelligent, passionate public figures who understood judging and politics well--LDB was their worst nightmare as a Supreme Court justice.

Brandeis's confirmation was far rockier than that of Sonia Sotomayor. It dragged on from February 1916, when a subcommittee of the Judiciary Committee began hearings, through May, when the Judiciary Committee, which had a Democratic majority, approved the nomination 10-8. The final vote in the Senate was 47-22, with three Republicans voting for Brandeis and one Democrat against him. After the ordeal was over, Wilson said, "I never signed any [judicial] commission with such satisfaction."

Brandeis, who had been an intimate adviser to Wilson, was the first Jewish nominee to the Court in the early 20th century. Beginning in the 1890s an influx of Jewish immigrants from southern and eastern Europe had resulted in a wave of anti-Semitic nativism in the northeast, where most of the nation's largest and most influential cities were then located. Brandeis's ethnic heritage became visible in a way it had not been in the 1870s, and there were some ugly anti-Semitic protests over his nomination. But his confirmation was uncharacteristically difficult, for the time, primarily because his opponents saw him as a formidable lawyer whom they expected to be an even more formidable judge.

The job of a Supreme Court justice, from the time Brandeis joined the Court to the present, has consisted of four primary tasks. The first and most important is to decide cases in a collective setting. The second, very closely connected to but separable from the first, is to craft justifications for decisions. That task does not simply devolve on the justices who are assigned to write opinions of the Court. It occurs in several stages of the process: when the Court decides to hear a case; when the case is discussed in conference; when a justice decides whether to join the majority disposition of the case or not; when a justice decides whether to write an opinion in the case or not. Many of the crafting stages are not visible to the public. All, however, are demanding and important.

The third primary task of the job is to interact with one's colleagues. Holmes once said that the justices on the Court were like nine scorpions in a bottle. Earl Warren believed that the job could be a living hell. Both were referring to the fact that the Court is a collegial body, so that an individual justice's arguments and votes and opinions must take his or her colleagues into account.

Some justices, such as Charles Whittaker, have found themselves unable to deal with the strain of constantly having to justify one's decisions and views to one's (usually) talented colleagues. Others, such as William O. Douglas, have found being constantly collegial such a strain that they rebelled against the conventions of collegial interaction. Douglas deliberately left Washington in mid-June for the remote hamlet of Goose Prairie, Washington, whether or not the Court had concluded its session. Several times in his career the Court had emergency summer hearings. Douglas never returned for them. He just couldn't stand having to be so collegial for so much of the year.

The last primary task is to make effective use of one's clerks. Congress had appropriated funds to pay a clerk for each justice in 1886, and Brandeis immediately followed the selection practice initiated by Holmes, that of having a member of the Harvard law faculty select his clerk each year. Frankfurter, who had joined that faculty in 1913 and begun picking Holmes's clerks two years later, was only too happy to pick those of Brandeis as well, and continued to do so until Brandeis retired.

Frankfurter and Brandeis had first met in Washington in the years before World War I, and the two men, born 26 years apart, became very close friends. Throughout his multifaceted career, Frankfurter combined being a consummate elitist with having a strong interest in social networks. The Harvard graduates he picked for Brandeis were invariably outstanding law students, often Jewish, and inclined, as was Frankfurter, to see LDB as an awesome figure.

Brandeis loved intellectual exchange, loved to teach, and was quick to recognize the intellectual gifts of others. With a few exceptions, he made excellent use of his clerks who, on the whole, worked hard for him and admired him. This did not prevent them from writing one another about LDB's foibles. One in particular, David Riesman, did not click with LDB, and many years later talked and wrote about why.

Riesman's comments give us a window into Brandeis's mind and style as a justice, not only as reflected in his relations with his clerks but in all the primary tasks of his job. In Riesman's view, LDB was, from first to last, a shrewd, purposive judge, rapidly staking out a position on the issues of law and policy that came before him and single-mindedly, and skillfully, seeking to vindicate that position. He used each of his job tasks to do so, fashioning arguments for why the Court should take a case or decide it in a certain way, behaving strategically in the decision-making and opinion-writing process, and making ample use of the talented Harvard graduates Frankfurter sent him.

Examples abound. If LDB wanted to eliminate the long-established system of federal and state courts in the same state being able to declare different common law rules, he talked his fellow justices into believing that having different common law rules might be unconstitutional. Then, even though counsel in the case (Erie Railroad v. Tompkins, decided in 1938) had not even argued the constitutional issue, Brandeis wrote an opinion for the Court declaring that "there is no such thing as general federal common law," single-handedly changing the choice-of-law rules for the federal courts.

Brandeis's performance in Erie is just one illustration. He bargained with his fellow justices to get changes in the language of majority opinions, issuing prospective dissents that he was prepared to suppress if changes were made. He marshaled sociological and economic evidence in support of legislation he believed should survive challenges to it under the Constitution. His most famous free speech opinion, Whitney v. California (where he first articulated the theory that the First Amendment is designed to allow free people to govern themselves), came in a case where he agreed that the party being incarcerated for "seditious" speech, Anita Whitney, should remain in prison.

During Riesman's term, in a case testing whether the state of Oregon could constitutionally prevent out-of-state berry box manufacturers from selling their products within Oregon, Riesman found evidence that the legislation in question was the result of lobbying by in-state berry growers. LDB ignored the evidence because he believed that the states should be "laboratories of experimentation" for social programs. The states, yes; but not, on the whole, the federal government. Brandeis was only too happy to join majorities invalidating early New Deal legislation because he thought excessive governmental size was just as unsound as excessive size in corporations.

Brandeis was, in short, a result-oriented, agenda-driven judge of a very sophisticated kind. He mastered all of the primary tasks of his job. At the same time he kept a close eye on politics. "Holmes has no idea what makes men work," he wrote once of his dearest friend on the Court. "He is as innocent as a girl of 16." Holmes would "fire off" an opinion in a case, thereby preventing him from playing it long within the Court's decision-making process. Brandeis always played it long if he thought that necessary. Taft came to believe, early in his chief justiceship, that Holmes had become Brandeis's dupe.

"I love the old gentleman," Taft wrote a friend in frustration, but Holmes's presence gave "Brandeis two votes." Taft had already concluded that Brandeis was with "the Bolsheviki," so he was hardly being objective. But one strategic politician--Taft, who had had six appointments during his one-term presidency, and was invariably lobbying for his favorites to be nominated to lower federal courts and the Court itself--recognized another.

None of this is to say that Brandeis was a bad judge, or even to suggest that he was a judge who behaved inappropriately. He was a consummate master of the primary tasks of his job, just as he had been a consummately gifted law student, lawyer, municipal reformer, and presidential adviser.

It is to say, however, that one should read a little more deeply when one encounters LDB's masterful arguments for one legal position or another. The arguments are forcefully made and eloquently expressed, but behind them is Brandeis's complete views on everything. Riesman was able to glimpse that dimension of LDB because he expected Brandeis to be one thing--a southern agrarian, which Riesman, then in his twenties, thought he was as well--and found that LDB was much more than that. Riesman did not have a good time in his clerkship year, and never slipped into law clerk hagiography, which is all too common in recollections about Brandeis.

Melvin Urofsky, for different reasons, comes close to slipping into hero-worship in Louis D. Brandeis. Urofsky is too solid and balanced a scholar to cross the line into rapt admiration. But the Brandeis effect--le juge formidable--hovers around this book. As Ralph Waldo Emerson once allegedly said to Holmes when, at 20, Holmes showed Emerson an analytical essay he had written on Plato, "When you strike at a king, you must kill him."

G. Edward White, the David and Mary Harrison distinguished professor of law at the University of Virginia, is editor of the most recent edition of Oliver Wendell Holmes's The Common Law.