Looking Back on Louis Brandeis on His 150th Birthday

By ADAM COHEN
November 14, 2006
Editorial Observer

In 1908, Louis Brandeis turned American law on its head with the “Brandeis brief.” The Supreme Court was in the midst of the notorious Lochner era, in which a pro-business majority routinely struck down laws protecting workers’ health and safety. Brandeis was defending an Oregon law that limited women’s workdays to 10 hours. It seemed likely the court would rule, as it just had in a similar case, that maximum-hours laws violated employers’ “right of free contract.”

In his brief, Brandeis devoted just two pages to legal analysis. He spent more than 100 pages setting out statistical and sociological data on the harm that long workdays did to women. His use of facts and sociological arguments was both shocking and enormously successful. The court upheld Oregon’s law, 9 to 0.

Brandeis, whose crusades against insurance companies and banks earned him the title “the people’s lawyer,” was born 150 years ago this week. He has many claims to fame: champion of the New Deal, first Jewish Supreme Court justice, creator of the legal doctrine of privacy. But it is Brandeis’s insistence on injecting facts and real-world analysis into the law that is his most lasting achievement, and one that resounds especially strongly today, when “reality-based” logic is so embattled.

Brandeis was born in Louisville, Ky., shortly before the start of the Civil War. As a Southerner and the son of a small merchant, he grew up with a Jeffersonian mistrust of big business. He entered Harvard Law School in 1875, and after graduating first in his class, remained in Boston to practice law. As a young lawyer, he co-wrote an article for the Harvard Law Review, “The Right to Privacy,” that Roscoe Pound, dean of the law school, would later say “did nothing less than add a chapter to our law.”

Brandeis was drawn to social causes. His first major victory was blocking a company from securing a monopolistic right to operate Boston’s subway system. Later, as special counsel to the Interstate Commerce Commission, he took on the railroad barons, insisting that they should not get rate increases “so long as the vicious system of interlocking directorates makes it impossible to know how much of the money is honestly and efficiently spent.”

And he fought for workers. The Brandeis brief may not look particularly progressive by contemporary standards. It emphasizes women’s feeble physical condition compared with men’s, and quotes such authorities as a cotton mill machine operator who told a Senate committee, “I have noticed that the hard, slavish overwork is driving those girls into the saloons.” But the brief was perfectly calibrated for the Supreme Court of its day. In appealing to the justices’ paternalistic concern for women, it found a chink in the court’s pro-business armor.

Brandeis was so enamored of facts and real-world consequences that he found himself moonlighting as a journalist. He wrote a fine series of muckraking articles on the “money trusts” for Harper’s Weekly, which were later published as the book “Other People’s Money and How the Bankers Use It.”

When President Woodrow Wilson nominated Brandeis to the Supreme Court in 1916, conservatives worried that he would inject radical new ideas into the law. He did, on subjects ranging from civil liberties to workers’ rights. (In 1937, he was part of the five-member majority that finally ended the Lochner era by upholding a state minimum wage law.) But it was his methodology, as much as his end results, that shook up the legal world. To Brandeis, every opinion — even on a subject as mundane as whether a state can require ice sellers to get a permit — was a chance to hold forth on the case’s practical importance.

For Brandeis, raw data was always key. Oliver Wendell Holmes, his distinguished senior colleague, once complained that Brandeis “drove a harpoon into my midriff by saying that it would be for the good of my soul to devote my next leisure to the study of some domain of fact — suggesting the textile industry.” Holmes protested, “I hate facts,” but grumpily took a government report along with him on his summer vacation.

The Brandeis brief today bears the truest mark of a transformative idea: as radical as it was in its time, today it looks thoroughly conventional. Generations of litigators were quick to adopt its approach. The civil rights lawyers in Brown v. Board of Education prevailed in large part because of their Brandeisian briefs that presented social science data on the effect of segregation on black children.

We are living in an era when facts, and rational analysis, are on the ropes. The president has been inhabiting a world, Ron Suskind wrote in a 2004 New York Times Magazine article, that scorns “the reality-based community.” Congress routinely adopts policies that cater to special interests, which are then justified by the sort of smarmy, fact-free spin that the comedian Stephen Colbert has labeled “truthiness.”

But courts operating on the Brandeis model have, at their best, been a check on this disturbing trend. In its proudest moments, from the civil rights rulings of the 1960s to recent decisions reining in the Bush administration’s war-on-terror excesses, the Supreme Court has insisted on focusing resolutely on the facts, and on the practical effect of the challenged policies on real people.

Decisions like these are Brandeis’s true legacy. His greatest lesson was that — as he wrote in a famous dissent, excoriating the majority for not letting government do more to battle the Great Depression — “in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles.”