Brandeis was the son of Adolph Brandeis and Frederika Dembitz, Jewish immigrants from Prague, who emigrated both for economic reasons and to escape rampant anti-Semitism that emerged after the Revolutions of 1848 in Europe.
Living in Louisville, Kentucky, the family maintained strong ties to German culture, with young Brandeis reading Goethe and Schiller. Though his parents were fairly secular, the extended Brandeis family was more devout. The early influence of his uncle, Naphtali Dembitz, a Zionist who also served as a Republican delegate and nominated Abraham Lincoln for president in 1860, would have a profound effect on his life. Brandeis later changed his middle name, “David,” to “Dembitz” to honor him.
The Brandeis family also held abolitionist beliefs, a position that scandalized conservative Louisville. The family returned to Europe in 1872, but returned to America in 1875 to attend Harvard Law School.
Education and Early Career as a Lawyer
At Harvard, Brandeis became enamored with law, at the same time that legal procedure was changing to the current “Casebook method,” relying on precedent rather than strict legal ordinances. When his eyesight began to fail, he paid other students to read his textbooks aloud until he memorized them. Brandeis graduated as valedictorian with the highest grade point average in the school’s history; a record that stood for eighty years.
Admitted to the Missouri bar in 1878, he soon teamed up with a wealthy classmate, Samuel D. Warren, to open their own law firm in Boston. At the same time, Brandeis served for two years as a clerk for Horace Gray, then Chief Justice of the Massachusetts Supreme Court. He passed the Massachusetts bar without having to take any examinations, apparently due to the influence of both Gray and his Harvard professors. Brandeis himself commented that this was “contrary to all principle and precedent.”
The Warren and Brandeis firm was a great success, with Brandeis winning his first Supreme Court case, as counsel for the Wisconsin Central Railroad, in 1889. “There is a certain joy in the exhaustion and backache of a long trial,” he wrote to his brother, “which shorter skirmishes cannot afford.” He preferred advising his clients directly on many matters of business, including how to prevent future issues, and refused to work with anyone but the person in charge. He also refused to work any cases where he felt that his client was in the wrong, and instead would advise them to make amends and not pursue their case.
Right to Privacy and Becoming “The People’s Lawyer”
Warren’s wealthy family wound up involved in some unwelcome publicity, encouraging him and Brandeis to develop three articles between 1888 and 1890 on “The Right of Privacy,” which was the name of the third and most influential. Noting that this principle was already implicit in several existing laws, they argued that “the right to be left alone” was a protection of a person’s emotions and spirit, and just as vital as the protection of personal property. This articulated a view that would go on to be incredibly influential in modern jurisprudence, with legislature and legal decisions soon drawing on the ideas that Brandeis and Warren professed. During this time, Warren also left the firm to take over his father’s paper business.
With his new partners, Brandeis went on to champion many progressive causes, arguing that the law was often written without taking the good of the common people into account. He soon became known as “the People’s Lawyer,” and often worked pro bono for causes that he championed.
In 1894 he worked with philanthropist Alice N. Lincoln on fifty-seven public hearings for people held in poorhouses, where the unemployed were housed together with criminals and the mentally ill. This led to reformation of the existing poor laws. He also started a long-running campaign in 1896 against corruption in the Boston government, where high-ranking officials were so enamored with nepotism that one alderman gave two hundred jobs away to his supporters.
Brandeis was against big business and monopolies, which he saw as both unfair and inefficient modes of getting work done, as their “secure positions freed them from the necessity which has always been the mother of invention.” His biggest anti-trust case came in 1907, when J.P. Morgan’s New Haven Railroad tried to acquire Boston and Maine Railroad, its biggest competitor. Brandeis argued that this would ultimately doom the company. He faced widespread criticism—”I have made more enemies than in all my previous fights together,” he wrote—but was vindicated when Morgan’s company was proven to have taken part in illegal practices.
In the 1908 Supreme Court case of Muller v. Oregon, about the number of hours that women could be forced to work by their employers, Brandeis invented the so-called “Brandeis Brief.” Only two pages of the brief were legal in nature; more than one hundred pages were citations of social scientists, doctors and male workers. This inclusion of non-legal evidence set a precedent that became important in later cases, such as Brown v. Board of Education.
During the 1912 presidential election, Democratic candidate Woodrow Wilson took Brandeis, a former Republican, on as an adviser and made his anti-trust crusade a centerpiece of his own campaign. Wilson won the presidency, and credited Brandeis as “a great part of the victory.” Considered too controversial to join the Cabinet, Brandeis nevertheless continued to advise Wilson. In 1916, however, Wilson nominated him for the Supreme Court. This nomination was so controversial that the Senate Judiciary Committee held its first-ever public hearing on a candidate, allowing his opponents to address them. His anti-trust cases formed the bulk of the objections, but some were tainted with anti-Semitism. However, many progressives favored him, and he ultimately was voted in by 47-22.
Brandeis, along with fellow juror Oliver Wendell Holmes Jr., were liberals on a predominantly conservative court, and the two often formed the dissenting side. Nevertheless, Brandeis’ opinions during this period have had a great effect on legal philosophy.
A few cases stand out:
- Gilbert v. Minnesota (1920): Brandeis argued that a law against interfering with military recruitment violated free speech, and could be interpreted as far as forbidding parents to teach their children pacifism.
- Whitney v. California (1927): This case ruled that aiding the Communist Party met the “clear and present danger” requirement to violate free speech. Brandeis dissented that such a right should extend to when “evil apprehended is so imminent that it may befall before there is opportunity for full discussion.”
- Olmstead v. United States (1928): Brandeis dissented that the Fourth Amendment against illegal searches should extend to wiretapping. This idea would ultimately be vindicated in 1967’s Katz v. U.S.
- Packer Corporation v. Utah (1932): Brandeis led a unanimous court in saying that public billboards had less First Amendment protection than other advertisements, since they created a “captive audience” and thus violated the right to privacy.
Brandeis was an opponent of the New Deal for the same reasons that he opposed big business, believing that it made the government dictatorial and inefficient. In this case, he and the Court agreed, ruling against the government in Louisville v. Radford, Schechter Poultry Corp. v. United States and Erie Railroad Co. v. Tompkins.
In 1891 Brandeis married Alice Goldmark, the daughter of physician Joseph Goldmark, who invented red phosphorus, and niece of Karl Goldmark, a famous composer. The couple would go on to have two daughters. His wife’s medical problems often kept Brandeis busy with domestic activities, on top of his legal work.
Brandeis was an ardent Zionist and served on the Zionist Organization of America.
He retired 1939 and died on October 5, 1941.