Louis Brandeis

Based on Wikipedia: Louis Brandeis

In the winter of 1932, with America deep in the Great Depression, a visitor asked Supreme Court Justice Louis Brandeis if he thought the worst was over. "Oh yes," Brandeis replied, "the worst took place before the crash."

It was a quintessentially Brandeisian answer. He wasn't talking about economic indicators or unemployment rates. He was talking about something more fundamental: the corruption of American values by concentrated wealth and unchecked corporate power. The crash, in his view, was merely the inevitable consequence of a deeper rot.

This belief—that bigness itself was a curse, that concentrated power in any form threatened democracy—would define one of the most consequential legal careers in American history. Louis Brandeis didn't just interpret the law. He rewrote it. He invented entirely new concepts, like the right to privacy, that we now take for granted. And his ideas about monopoly power, dormant for decades, have roared back to life in our own era of tech giants and billionaire oligarchs.

The Making of an Outsider

Louis David Brandeis was born in Louisville, Kentucky, in 1856, to Jewish immigrants who had fled Prague after the revolutionary upheavals of 1848. His parents, Adolph and Frederika, had witnessed something disturbing: even when the liberal rebels they sympathized with briefly controlled Prague, antisemitic riots erupted. The lesson was clear. Political progress offered no guarantee of safety for Jews.

America, by contrast, seemed genuinely different. Adolph Brandeis had scouted the Midwest before bringing his family over, and wrote home with an almost naive enthusiasm: "America's progress is the triumph of the rights of man."

The family settled in Louisville because it was a prosperous river port, but the American Civil War soon disrupted their lives. The Brandeises held abolitionist views that angered their Kentucky neighbors, forcing them to seek temporary safety in Indiana. This childhood experience—being an outsider even among outsiders, holding unpopular moral positions—would shape Louis for life.

The Brandeis household was intensely intellectual. Business and money were considered inappropriate dinner conversation. They discussed history, politics, culture. Young Louis absorbed German literature—Goethe, Schiller—and German music—Beethoven, Schumann. His parents raised their children to be "high-minded idealists" rather than relying on religion for purpose and inspiration.

Though Jewish, the family was thoroughly secular. They celebrated Christmas as a cultural holiday alongside their neighbors. Yet Louis's uncle, Lewis Naphtali Dembitz, stood apart from the rest of the family. He actually practiced Judaism and was involved in Zionist activities. He was also a refined intellectual who had served as a delegate to the 1860 Republican convention that nominated Abraham Lincoln.

Uncle Lewis became Louis's model. The young man would later change his middle name from David to Dembitz in his uncle's honor. This uncle showed him that serious intellectual engagement could coexist with commitment to a cause, that one could be both a scholar and an activist.

A Prodigy Discovers His Calling

Louis Brandeis was, by any measure, an extraordinary student. He graduated from Louisville Male High School at fourteen with the highest honors. At sixteen, he won a gold medal for "excellence in all his studies." When his family temporarily relocated to Europe in 1872, he spent two years at the Annenschule in Dresden, where he not only excelled but developed something crucial: the capacity for critical thinking.

He would later credit Germany for his desire to study law in America. The contrast between systems—European tradition versus American possibility—helped him see law not as a fixed body of rules but as a living, evolving response to human needs.

In 1875, Brandeis entered Harvard Law School at eighteen, without financial help from his family. He arrived at a moment of transformation. The old method of legal education—memorizing "black-letter" rules—was giving way to something more dynamic. The Socratic method and the casebook approach were training students not to recite law but to reason about it.

Brandeis thrived. He joined the Pow-Wow club, a precursor to modern moot courts, which gave him practice as a judge. He threw himself into the new teaching methods with what he described as "desperate longing for more law" and "almost ridiculous pleasure which the discovery or invention of a legal theory gives me."

He called the law his "mistress."

Then his eyes began to fail.

The combination of massive reading requirements and poor gaslight visibility was destroying his vision. School doctors suggested he quit entirely. Instead, Brandeis found a workaround that revealed both his determination and his unusual mind: he paid fellow students to read textbooks aloud while he memorized the legal principles by ear.

He graduated in 1877 as valedictorian and was elected to Phi Beta Kappa. His grade point average was the highest in Harvard Law School's history—a record that would stand for eighty years. "Those years were among the happiest of my life," Brandeis said. "I worked! For me, the world's center was Cambridge."

The People's Lawyer

After a brief stint in St. Louis, Brandeis returned to Boston to start a law firm with his Harvard classmate Samuel Warren, who had ranked second in their class. Warren came from a wealthy Boston family, and their connections helped the new firm gain clients.

Brandeis was admitted to the Massachusetts bar without taking an examination—"contrary to all principle and precedent," as he sheepishly wrote to his brother. His reputation from Harvard opened doors that would have been closed to most.

As his practice grew successful and his family's finances became secure, something unusual happened. Brandeis started refusing to charge for certain cases.

This wasn't charity in the conventional sense. It was strategic. He insisted on taking cases without pay so he would be free to address wider issues, unconstrained by a client's narrow interests. This practice earned him the nickname "The People's Lawyer." The Economist called him "a Robin Hood of the law."

His approach to being a lawyer was itself unconventional. He preferred being an adviser rather than just a courtroom strategist. Before taking on business clients, he demanded two conditions: he would deal only with the person in charge, never intermediaries, and he could advise on any relevant aspect of the firm's affairs, not just specific legal questions.

"I would rather have clients than be somebody's lawyer," he explained. In his private notes, he reminded himself to "advise client on what he should have, not what he wants."

Most unusually, Brandeis turned away cases he considered bad. If he believed a client was in the wrong, he would either persuade them to make amends or withdraw entirely. When uncertain about a case, he wrote to one client: "The position that I should take if I remained in the case would be to give everybody a square deal."

This was not how lawyers typically operated. It was certainly not how one became wealthy. But Brandeis was building something more valuable than a fortune. He was building a reputation for incorruptibility.

Inventing Privacy

In December 1890, Brandeis and his partner Warren published an article in the Harvard Law Review that would change American law forever. It was called "The Right to Privacy."

The catalyst was mundane: Warren was angry about newspaper coverage of his family's social activities. But from this personal irritation, Brandeis built something profound.

The problem was new. "Snapshot photography"—what we might call candid photography today—had recently become possible. Newspapers could now publish photographs and statements of individuals without obtaining their consent. There was no law against it. Why would there be? The technology had just been invented.

Brandeis and Warren argued that private individuals were being "continually injured" by this practice, and that it weakened "the moral standards of society as a whole." They wrote:

The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry, as well as effrontery.

This could have been written yesterday about social media.

But Brandeis didn't just complain. He invented a legal solution. Drawing on diverse analogies from defamation law, literary property, and eavesdropping cases, he argued that beneath all these different doctrines lay a single, unarticulated principle: an interest in personal integrity, "the right to be let alone."

This right, he argued, deserved legal protection except when some compelling public interest overrode it.

Legal scholar Roscoe Pound said the article accomplished "nothing less than adding a chapter to our law." He wasn't exaggerating. Before Brandeis, there was no recognized legal concept of privacy in American law. After him, there was. The Fourth Amendment's protection against unreasonable searches, the development of data protection laws, the entire framework we use to think about personal information and surveillance—all of this builds on the foundation Brandeis laid.

And notice the reasoning behind his position. Brandeis saw emotions as a "positive expression of human nature." Privacy protection, in his view, wasn't just about avoiding embarrassment or maintaining social reputation. It was about protecting "against repression of the human spirit."

This is privacy as a matter of human dignity, not merely convenience.

Fighting the Curse of Bigness

If inventing privacy law was one pillar of Brandeis's legacy, his war against monopoly was another.

At the turn of the twentieth century, American capitalism was consolidating at a terrifying pace. Railroads, banks, and industrial combines were merging into ever-larger entities. The men who controlled these empires—the robber barons—wielded power that rivaled or exceeded that of the government itself.

Brandeis became a leading figure in the antitrust movement, particularly through his resistance to the monopolization of the New England railroad system. He wrote books, articles, and speeches attacking concentrated economic power. His works included "Other People's Money and How the Bankers Use It" and "The Curse of Bigness."

The latter title captures his essential belief. Bigness wasn't merely inefficient or unfair—though Brandeis argued it was both. Bigness was a curse. It threatened democracy itself.

His argument went like this: Democracy depends on engaged, independent citizens. Vast corporations create vast bureaucracies filled with people who follow orders rather than think for themselves. They concentrate decision-making power in the hands of a tiny elite. They corrupt the political process through their lobbying and campaign contributions. And they reduce citizens to passive consumers rather than active participants in economic and political life.

This wasn't just economic analysis. It was moral philosophy.

Brandeis criticized large banks, money trusts, powerful corporations, monopolies, public corruption, and mass consumerism—all of which he felt were "detrimental to American values and culture." He wasn't a socialist who wanted government ownership of industry. He was something perhaps more radical: he wanted to break up concentrations of private power so that small businesses, workers, and ordinary citizens could thrive.

He spoke in favor of what we might now call stakeholder capitalism: co-determination, where workers have a voice in management; workplace democracy; multi-stakeholder businesses that answer to communities, not just shareholders.

These ideas fell out of fashion during the late twentieth century, when economists and policymakers embraced the Chicago School view that monopolies were often efficient and that antitrust enforcement did more harm than good.

But Brandeis's anti-monopolistic thinking has experienced a dramatic revival in the twenty-first century. The "New Brandeis movement" applies his ideas to modern tech giants like Google, Amazon, and Facebook. Legal scholars like Lina Khan—who would later chair the Federal Trade Commission—and Tim Wu have built their careers on Brandeisian foundations.

The core insight has proved durable: economic power and political power cannot be separated. A company that dominates a market doesn't just extract higher prices. It shapes what options exist, what information flows, what voices are heard. In a democracy, such power demands accountability.

The Brandeis Brief

Beyond his intellectual contributions, Brandeis revolutionized how lawyers actually practice law.

In 1908, he defended an Oregon law that limited women's working hours to ten per day. The case, Muller v. Oregon, went to the Supreme Court. The legal question was whether such a law violated the constitutional liberty of contract—the right of workers and employers to agree to whatever terms they wished.

Previous courts had struck down similar laws protecting workers, on the theory that government shouldn't interfere with private contracts. Brandeis knew he couldn't win on pure legal precedent.

So he invented something new.

His brief devoted only two pages to legal arguments. The remaining one hundred pages consisted of evidence from doctors, social workers, factory inspectors, and other experts about the actual effects of long working hours on women's health and welfare.

This was unprecedented. Legal briefs were supposed to cite cases and statutes, not medical studies and factory reports. But Brandeis understood that law doesn't exist in a vacuum. It affects real people in real circumstances. If judges didn't understand those circumstances, they couldn't make good law.

The Supreme Court unanimously upheld the Oregon law. More importantly, the "Brandeis brief" became a template. Future lawyers arguing about labor laws, civil rights, environmental regulations, and countless other issues would follow his example, marshaling empirical evidence to show courts the real-world stakes of their decisions.

This matters more than it might seem. Courts can be insulated from reality. Judges deal in abstractions—precedents, principles, constitutional clauses. The Brandeis brief forced them to confront facts. It made law more responsive to the world it governed.

To the Supreme Court

In 1916, President Woodrow Wilson nominated Louis Brandeis to the Supreme Court.

The nomination ignited a firestorm.

Some opposition was professional. The legal establishment resented Brandeis's innovations and his willingness to challenge powerful interests. Former President William Howard Taft, himself a lawyer and later a Supreme Court justice, led organized opposition. Seven former presidents of the American Bar Association signed a petition against confirmation.

But much of the opposition was antisemitic. Brandeis was the first Jew ever nominated to the Supreme Court, and this provoked reactions ranging from genteel discomfort to open bigotry.

Justice William O. Douglas, who would later serve on the Court, summarized the opposition years afterward:

Brandeis was a militant crusader for social justice whoever his opponent might be. He was dangerous not only because of his brilliance, his arithmetic, his courage. He was dangerous because he was incorruptible... and the fears of the Establishment were greater because Brandeis was the first Jew to be named to the Court.

The confirmation battle lasted four months—unprecedented at the time. Brandeis himself never testified or made public statements in his defense, considering it beneath the dignity of a potential justice. His supporters organized on his behalf, and Wilson never wavered in his support.

On June 1, 1916, the Senate confirmed Brandeis by a vote of 47 to 22. He would serve on the Court for twenty-three years, until 1939.

The Great Dissenter

On the Supreme Court, Brandeis became one of history's most influential justices—often through his dissenting opinions.

His greatest contributions came in cases involving free speech and privacy. The First Amendment, which prohibits Congress from making laws "abridging the freedom of speech," had received relatively little judicial attention before the twentieth century. Brandeis helped define what it meant.

In Whitney v. California (1927), the Court upheld a conviction under a state law criminalizing membership in organizations that advocated violent political change. Brandeis concurred in the judgment but wrote separately to articulate a far more protective vision of free speech:

Those who won our independence believed that the final end of the State was to make men free to develop their faculties... 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.

The remedy for dangerous speech, he argued, was not suppression but more speech. Only an imminent threat of serious harm could justify government restriction of expression. This view, initially expressed in dissents and concurrences, would eventually become the law of the land.

On privacy, Brandeis wrote what many consider his greatest opinion in Olmstead v. United States (1928). The case involved wiretapping—government agents had tapped telephone lines to gather evidence against bootleggers during Prohibition. The majority held that wiretapping didn't violate the Fourth Amendment because it didn't involve physical trespass into the defendant's home.

Brandeis dissented. The Constitution, he argued, must be read to protect the values it was meant to protect, not just the specific practices it originally addressed. The Founders couldn't have imagined wiretapping, but they understood the evil of unchecked government surveillance.

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 sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.

That phrase—"the right to be let alone"—echoed his 1890 article. Thirty-eight years later, he was still working out its implications.

His Olmstead dissent was vindicated decades later when the Supreme Court overruled that case and adopted Brandeis's reasoning. Today, Fourth Amendment law rests substantially on the foundations he laid.

Zionism

Though raised in a secular household and largely indifferent to religion for most of his life, Brandeis became an active Zionist in his fifties.

The cause was Europe. As antisemitism intensified on the continent—pogroms in Russia, the Dreyfus affair in France, rising nationalism everywhere—Brandeis came to see Zionism as a practical solution to an intractable problem. Jews needed a place where they could be safe.

But his Zionism was characteristically Brandeisian. He didn't emphasize religious or ethnic identity. Instead, he saw the Zionist project as an opportunity to build a new kind of society—small-scale, democratic, cooperative. Palestine could be a laboratory for the ideals he championed in America: resistance to concentrated power, economic democracy, community self-governance.

He also saw Zionism as a way to "revive the sense of the Jewish spirit"—not through religious practice but through collective purpose and cultural renewal.

During World War I, Brandeis led the American Zionist movement and helped secure British support for the Balfour Declaration, which promised a Jewish homeland in Palestine. He used his influence with President Wilson and other officials to advance the cause.

After joining the Supreme Court, he stepped back from formal leadership but continued to support Zionist institutions financially and through behind-the-scenes influence. Brandeis University, the first Jewish-sponsored nonsectarian university in America, was named in his honor after his death.

The Legacy

Louis Brandeis died on October 5, 1941, at the age of eighty-four. He had served on the Supreme Court longer than all but a few justices in history. His opinions on free speech, privacy, and the limits of government power had reshaped American constitutional law.

But his influence extended far beyond any specific doctrine.

Brandeis demonstrated that law could be a tool for social justice—that a brilliant lawyer could choose to fight for the powerless rather than serve the powerful. His model of public-interest lawyering inspired generations of attorneys who followed.

He showed that legal reasoning could incorporate social and economic reality, not just precedent and abstraction. The Brandeis brief opened courtrooms to evidence that made law more responsive to human needs.

And his warnings about concentrated power—economic, political, informational—have proved prophetic. When he wrote about the curse of bigness in the era of Standard Oil and J.P. Morgan, critics accused him of nostalgia for a simpler past. Today, when a handful of technology companies dominate our information ecosystem and billionaires wield influence that dwarfs most governments, his concerns seem more urgent than ever.

The New Brandeis movement isn't just an intellectual exercise. It represents a fundamental challenge to the assumptions that have governed economic policy for forty years—the assumption that efficiency justifies concentration, that markets will self-correct, that political power can be separated from economic power.

Brandeis knew better. He had seen what concentrated power did to democracy. He had watched the sunny lies of the 1920s give way to the catastrophe of the 1930s. And he understood that the crash wasn't the worst of it. The worst was the corruption that preceded it—the transformation of citizens into consumers, of democracy into plutocracy, of a republic into an arena where the powerful simply took what they wanted.

"We must make our choice," Brandeis once wrote. "We may have democracy, or we may have wealth concentrated in the hands of a few, but we can't have both."

Nearly a century later, we are still making that choice.