AUGUST 8, 2016
ONE HUNDRED YEARS AGO, on June 1, the Senate confirmed the nomination of Louis Brandeis to the Supreme Court. In many ways, the political climate then was similar to the one we find ourselves in now. Brandeis was appointed by a Democrat, Woodrow Wilson, in a presidential election year; the country was deeply divided over issues of economic inequality; and Republicans, worried about losing their grip on the Court, bitterly opposed the selection. The difference, of course, is that in 1916 the Senate actually held hearings on the nomination and ultimately gave Brandeis a vote.
Whether we have learned anything from Brandeis’s confirmation battle remains to be seen. But there is much we can learn from Brandeis himself, as Jeffrey Rosen argues in his concise and compelling new book, Louis D. Brandeis: American Prophet. Part biography and part extended essay, the book makes the case that Brandeis was the most farseeing constitutional philosopher of the 20th century, anticipating many of the legal, economic, and social challenges we are grappling with today.
Take the financial crisis of 2008. Brandeis spent much of his life preaching against the twin evils of monopoly and unregulated banks. His 1914 book, Other People’s Money and How the Bankers Use It, railed against bankers who gambled investors’ money on schemes they didn’t fully understand, while his essay “A Curse of Bigness” (later turned into a book) argued that monopolies were both inefficient and corrupting. His warnings were borne out not only in the crash of 1929, but 80 years later with the near-collapse of the financial sector. As Rosen puts it, “The idea of ‘too big to fail’ was the perverse culmination of Brandeis’s dystopian view of high finance.”
Brandeis also predicted the ways in which technology would threaten privacy. In the 1928 case of Olmstead v. United States, the Supreme Court ruled that government wiretapping did not violate the Fourth Amendment’s ban on unreasonable searches because it did not physically trespass on the defendant’s property. Brandeis, in dissent, argued that wiretapping was the modern equivalent of opening a sealed letter, which the Court had already ruled unconstitutional. Moreover, he recognized that the future held even greater threats to privacy. “The progress of science in furnishing the government with means of espionage is not likely to stop with wiretapping,” he wrote. “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.” The government’s collection of internet metadata and its use of thermal imaging devices have proved Brandeis eerily prescient on both counts.
What Rosen finds most interesting about Brandeis, however, is not the challenges he foresaw, but his unique approach to solving them. Unlike many progressives of his day, Brandeis did not believe that a larger national bureaucracy was the answer to corporate consolidation. Instead, he advocated small localized government, viewing states as “laboratories of democracy” that could “try novel social and economic experiments without risk to the rest of the country.” In this sense, Brandeis was the intellectual heir to Thomas Jefferson, who favored a decentralized agrarian society governed on the smallest scale possible. He was, in Rosen’s words, “the Jewish Jefferson.” But while Brandeis argued against centralization, he nonetheless favored an active social welfare state that provided a safety net for workers. He also spent much of his career as an attorney representing the public interest, work he did free of charge and for which he earned the label “the people’s lawyer.”
Brandeis thus melded two strands of modern political thought that are often at war with each other — the conservative insistence on small government and the liberal demand for economic justice. In Rosen’s view, this makes him an ideal prophet for judges and politicians today. In an era in which liberals and conservatives seem hopelessly at odds and gridlock is the norm, Rosen believes that Brandeis provides a blueprint for rising above partisan discord. By combining a Jeffersonian respect for states with a progressive concern for equality, he writes, Brandeis offers “a unifying vision of liberty and democracy for our divided age.”
Rosen’s argument is thoughtful and provocative, and there is certainly some truth to his diagnosis of the problem. Many liberals too quickly dismiss the merits of federalism, while conservatives often let their hostility to centralization cloud their judgment on such programs as Social Security and Medicare. But it is very much an open question whether Brandeis’s vision of state and local governments pursuing a progressive agenda is plausible in today’s world.
For one thing, state legislatures were far more sympathetic to the interests of the working class in Brandeis’s lifetime than they are now. During the Progressive Era, it was the states, not the federal government, that took the lead in passing minimum wage, maximum hour, and price maintenance laws. It is true that some cities today are leading the way on the minimum wage, while other cities have expanded anti-discrimination law to protect people who are transgendered. But state governments, for the most part, have become bastions of conservatism, with Republicans controlling all or part of 37 state legislatures.
It is also unclear whether the states are capable of fulfilling the role Brandeis envisioned for them. Brandeis, born in 1856, lived in a simpler time when it was still possible to imagine an agrarian society governed almost wholly on the local level. He held on to that ideal through the Second Industrial Revolution and the Great Depression, but one wonders whether he could have kept the faith as the economy grew more complex and commerce became increasingly interconnected. Even when he was alive, Brandeis had begun to make concessions, helping the Wilson administration launch the Federal Trade Commission and the Federal Reserve and voting to uphold some of the most sweeping aspects of the New Deal. Could he have really responded to globalization and the emergence of the internet by suggesting a return to small-scale democracy?
To understand just how difficult that would have been, one need only look to the current justices who most resemble Brandeis. Rosen identifies three — Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan — and argues that Breyer is the most natural heir to the Brandeisian tradition. But although these justices share Brandeis’s progressive vision, none of them share his suspicion of federal solutions to economic and social problems. They have consistently voted to uphold expansive federal programs, including the Affordable Care Act of 2010. Rosen suggests that Brandeis would have opposed Obamacare in favor of state reforms to health insurance. But he may also have reached the same conclusion as most modern progressives once he realized how many states were unable or unwilling to tackle the problem themselves.
The same is true in the realm of financial regulation. Rosen argues that Brandeis would have responded to the crisis of 2008 by supporting a cap on the size of banks rather than the Dodd-Frank Act, which authorizes the Federal Reserve to monitor and regulate the activities of the largest banks. But it is worth noting that both are federal solutions to a problem that is too large and unwieldy for the states to address themselves — even a cap on the size of banks would have required a federal infrastructure to enforce it.
That is not to say that states have no role to play in social and economic regulation. The Affordable Care Act itself empowers the states to create and manage the exchanges through which individuals purchase health insurance (although half the states have declined to do so, forcing the federal government to fill the void). Likewise, the Obama administration has declined to rigidly impose federal drug laws, leaving the states free to experiment with the legalization of marijuana. But on many issues — trade, the environment, immigration, homeland security — there is no escaping the need for centralized governance. The idea that we can avoid polarization by embracing local democracy, although intriguing, seems like wishful thinking.
Brandeis’s solutions to the other challenges he foresaw are more promising. One of the major questions he wrestled with was the proper balance between individual privacy and freedom of speech. In a famous 1890 article in the Harvard Law Review, Brandeis and his law partner, Samuel Warren, argued for an expansive right to privacy that would allow celebrities to sue the press for emotional injury and ordinary citizens to expunge truthful but embarrassing information from the public record. As Brandeis and Warren phrased it, such remedies would protect the individual’s “right to be let alone.”
In later decades, however, Brandeis came to appreciate the value of another right — freedom of speech. In the fall of 1919, he joined Justice Oliver Wendell Holmes’s famous dissenting opinion in Abrams v. United States, which introduced the concept of the marketplace of ideas. And over the next two decades, Brandeis vigorously defended the right of free speech, arguing that it was vital to the democratic process and the creation of an engaged citizenry. “Those who won our independence,” he wrote in 1927, believed “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.”
Brandeis’s opinions on free speech were eloquent and highly influential, but they were also at odds with his views on privacy. If public discussion is a political duty and free speech is essential to democracy, how can we punish the press for reporting on public figures or allow truthful information to be removed from the public record? Brandeis resolved this conflict by redefining his conception of privacy. We should protect people’s privacy not by limiting public discussion about their activities, he concluded, but by preventing government from prying into their lives; such a conception of privacy, rather than conflicting with free speech, actually reinforces it. If people live under the fear of government surveillance they will lack the freedom of thought and emotion that is a precondition for free speech.
Brandeis’s views on privacy were ultimately embraced by the full Court, and the 1928 Olmstead decision, from which he dissented, was later overturned. But as Brandeis recognized, the threats to privacy have only increased with time. In an age when technology allows the government to follow us anywhere, his warnings about the effect of surveillance on democracy are more prophetic than ever.
Brandeis was ahead of his time in other ways as well. He transformed the practice of Supreme Court litigation by focusing on facts rather than legal doctrine. In a 1908 case involving an Oregon law that limited the workday of women to 10 hours, Brandeis filed a 113-page brief on behalf of the state. But he devoted only two pages of his brief to issues of law. The remainder focused on conditions in the workplace and relied on such sources as medical testimony, labor statistics, and studies from the German Imperial Factory Inspectors. The “Brandeis brief,” as it became known, transformed the practice of law and served as a model for the civil rights litigation led by future Supreme Court Justices Thurgood Marshall and Ruth Bader Ginsburg.
Brandeis also helped pioneer the doctrine of constitutional avoidance, arguing that the invalidation of statutes was so fraught and momentous that courts should avoid it whenever possible. In a 1936 opinion, he listed seven techniques courts should use to sidestep constitutional rulings, such as narrowly interpreting statutes that raise constitutional doubts, disposing of cases on alternative, non-constitutional grounds, and refusing to hear complaints brought by plaintiffs who have not been injured. Constitutional avoidance has become an integral part of Supreme Court jurisprudence and played an important role in Chief Justice John Roberts’s controlling opinion in the 2012 Obamacare case. In that case, Roberts concluded that the law’s requirement that all individuals obtain health insurance exceeded Congress’s power under the Commerce Clause. But instead of voting to invalidate the law, Roberts chose to interpret it not as a regulation of interstate commerce, but instead as a tax. And viewed in that light, he wrote, it was within Congress’s power. Interestingly, Brandeis’s doctrine of avoidance ended up saving a statute that, according to Rosen, Brandeis would have personally opposed.
Perhaps Brandeis’s most important legacy can be found outside the law. Beginning in 1914, he became the leader of the Zionist movement in the United States and one of the most prominent advocates of Zionism in the world. Under his direction, the American Federation of Zionists raised millions of dollars and increased its membership from 12,000 to 176,000. More importantly, Brandeis was one of the main drafters of the 1917 Balfour Declaration, under which the British government promised to establish a homeland for the Jewish people in Palestine. It was that declaration that, three decades later, led to the creation of Israel.
In many ways Brandeis was an odd Zionist. Born into a non-observant household, he grew up celebrating Christmas and lived mostly apart from Jewish society. But at the age of 54, he met Jacob de Haas, the American secretary to Theodore Herzl, one of the founders of the Zionist movement. Brandeis was impressed with de Haas and intrigued by the prospect of a Jewish state. After several years of research and discussion with de Haas and others, he put his full weight behind the cause.
Why was Brandeis attracted to Zionism? There are several reasons, according to Rosen, but the primary one is that Brandeis thought a Jewish state in Palestine could serve as a testing ground for his Jeffersonian vision. With its numerous farms and local cooperatives, Palestine seemed like the ideal place to implement a small-scale agrarian democracy. He also hoped the creation of a Jewish state would help preserve a distinctive culture that, due to the assimilationist ideology of the United States, was at risk of being lost. In that way, he thought, Zionism would benefit both Jews and the rest of the world.
As with his views on federalism, there was something slightly naïve about Brandeis’s dream of creating a Jeffersonian democracy in the Middle East. His insistence on an agrarian economy was outdated, and he failed to realize the extent to which the creation of a Jewish state in Palestine would sow conflict and resentment in the region. As Rosen writes, “Brandeis’s idealistic vision was based not on real conditions on the ground but on his ideology, based on the experience of the American founding fathers.”
If Brandeis was wrong about some of the details, however, he was right about one thing: Jews needed a homeland for their own preservation. Brandeis died on October 5, 1941, two months before the United States entered World War II and several years before the worst revelations about the Holocaust came to light. But his efforts on behalf of Zionism helped to ensure that when the war came to an end the Jews who survived would have a place to call home. On this issue, as on so many others, he was remarkably prescient.
Thomas Healy, a professor at Seton Hall Law School, writes about freedom of speech, the methods of judicial decision-making, and the role of courts in a democracy. His book The Great Dissent: How Oliver Wendell Holmes Changed His Mind — and Changed the History of Free Speech in America won the 2014 Robert F. Kennedy Book Award, the Hugh M. Hefner First Amendment Award, and the New Jersey Council for the Humanities Book Award.