Scholar: Brandeis Developed Important
Judicial Theories Still Being Debated Today

by Tim Wood

            When Supreme Court Chief Justice Louis D. Brandeis stayed at his summer cottage in Chatham, he spent his time walking, canoeing, and speaking with the many visitors who dropped by his Stage Neck home.  And he didn’t stop working, according to his granddaughter, local attorney Alice Popkin.  He reviewed petitions of certiorari, filed by attorneys hoping to get cases reviewed by the Supreme Court.

Chief Justice Louis D. Brandeis.

            “In those days, the justices had to review the petitions themselves,” she said.  Having the post office deliver the petitions to his Chatham home was the only “perk” that she could remember her grandfather receiving, fitting for a man who had made his reputation as “the people’s attorney.”

            Brandeis is one of the few Supreme Court justices who would have been remembered even if he hadn’t served on the nation’s highest court, according to Philippa Strum, a senior scholar at the Woodrow Wilson International Center for Scholars and the author of two books about Brandeis.  As a Harvard-educated lawyer, he gained a reputation for fairness and creative thinking, first in Boston and then in cases of national importance.

            “He became the Ralph Nadar of his day,” Strum said during a talk to members of the Chatham Retired Men’s Club at the community center last Friday.  “There was no such thing as the people’s attorney, as the media dubbed him, before Brandeis took on this job.”

            Born in Louisville, Ky., in 1856, Brandeis’ earliest memory was of Union soldiers camped on his front lawn, Strum said.  He graduated from Harvard Law School in 1878 and began practicing in Boston; since his father and brother were small businessmen, he began his career representing the business community.  It was then that he developed his legal theory that a lawyer should  know all the facts in a case and be “a lawyer for a situation.”

            “He said he’d rather have clients than be somebody’s lawyer.  In order to understand a situation, he had to understand human beings. In order to understand human beings, he had to get to know all of them,” said Strum, author of “Louis D. Brandeis: Justice of the People,” and “Brandeis: Beyond Progressivism.”

            Brandeis was able to work out compromises between business owners and workers by not just looking to case law, but taking into consideration the people involved in the case.  It was this emphasis on human dignity, possibility and limitations that earned him the designation “the people’s attorney.”

            He began to take on public causes.  In one famous case, he mediated a dispute over the cost of gas in Boston, and came up with two ideas that were innovative for their time: the sliding fee scale and efficiency as a way to control costs and prices.

            He became an expert in public relations, although the field didn’t exist at the time, Strum said.

            “He understood if you want to get something done, you get the people involved.  He organized meetings, he organized letters to the editor, he helped plant articles in local newspapers.  He said if this was a fight for the public, it was a fight for everyone, not just one man,” she said.

            Brandeis believed U.S. citizens did not just have rights, but responsibilities as well.  A good citizen should educate themselves on the public issues of the day, and to do so required leisure time.  In those days, most people worked long hours and had little or no time for leisure; Brandeis believed conditions had to be created so laboring people would have the time to educate themselves, Strum said.

            “It was a rather daring concept at the time,” she noted.  He felt the most important office in the land was that of private citizen.

            Brandeis gained a reputation for working against trusts and other large business organizations, which he saw as organizations of exploitation.  If the man at the top did not know everything going on in a business, it was too large, he believed.  When he was nominated to the Supreme Court by President Woodrow Wilson, these positions prompted a “brutal fight,” Strum said.  Many of the businessmen who had befriended him saw his position on trusts as “turncoat,” she said.

            Brandeis saw the court as a bully pulpit, she said, a way to educate people about democracy and public policy.  He worked hard to ensure his positions were accessible to the average citizen.  He also developed a number of theories that are still the subject of debate today, including judicial restraint, which to Brandeis meant that the court should only strike down a law if it finds it to be in flagrant violation of the Constitution.

            “That meant sometimes he had to vote against his own predilections,” she said. 

            As a young lawyer, Brandeis and a partner wrote about the issue of privacy, asserting that although it was not specified in the Constitution, citizens had a right to privacy, a right to be left alone.  Later, while a justice on the Supreme Court, he asserted the right of people to be free of intrusion by the government, especially when its stated purpose is “beneficent.” 

            “The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding,” he wrote, according to Strum.

            Free speech and the right of assembly were two other areas Brandeis felt were extremely important.  “The greatest menace to freedom is an inert people,” he said.  Free speech, he said, must be protected right up to the moment when it becomes an immediate threat of harm to the government or a person, Strum said.

            “He argued the best cure for bad speech is good speech,” she said.

            Every summer, Brandeis would line up his grandchildren and have them report what they had been doing, said Popkin.  “He always looked right at you.  His mind never wandered,” she recalled.  Although by the time she was born her grandfather could no longer paddle on his own, he would still get into a canoe and be paddled into town by others via the Oyster River.  Brandeis died in 1941, when Popkin was 13.

            “He led a very simple life in Chatham,” she said, “because this was the life he liked.”

10/15/09