It was 101 years ago today that the Senate voted to confirm attorney Louis Brandeis to the Supreme Court, ending an ugly and hard-fought fight over his nomination.
Louis Dembitz Brandeis was born in Louisville, Ky., on Nov. 13, 1856; his parents were Jewish immigrants from Prague. He graduated from Harvard Law School with record-setting grades, becoming a prominent Boston attorney.
Brandeis and his law partner Samuel Warren articulated the “right to privacy” in a legandary 1890 Harvard Law Review article. The success of his practice allowed Brandeis to become involved in public-interest cases, earning him the name “the people’s lawyer.”
It also was Brandeis who came up with the “Brandeis Brief,” a Supreme Court argument still used today that evaluates cases using expert testimony including economic and social evidence, as well as legal precedents.
In 1908, Brandeis agreed to represent Florence Kelley and Josephine Goldmark (his sister-in-law) in a case about the constitutionality of limiting labor hours for female laundry workers. He won his case in front of the Supreme Court by citing non-legal data in a 113-page brief.
Brandeis became associated with President Woodrow Wilson during the 1912 presidential campaign, an equally bitter battle between Wilson, former President Theodore Roosevelt and the incumbent President William Howard Taft.
Brandeis accepted Wilson’s nomination to the Court four year later, knowing it would be a difficult fight. Not only was Brandeis associated with Wilson’s belief that public policy shouldn’t be driven by Big Business, Brandeis was also Jewish in an era when that fact alone would marshal considerable opposition to his nomination to the Supreme Court.
The Wall Street Journal and New York Times led the press opposition to Brandeis, calling him a “radical.” Among the Republicans who opposed his nomination were Taft, Henry Cabot Lodge and Elihu Root. Taft called the Brandeis nomination “an evil and a disgrace.” Six former presidents of the American Bar Association also opposed Brandeis.
In response to the outcry, the Senate held the first-ever Judiciary Hearing on a Supreme Court nomination. During the nomination fight, Brandeis wrote his friend, the legal scholar and Harvard Law School dean, Roscoe Pound, about the uproar over his nomination.
“I doubted very much whether I ought to accept, but the opposition has removed my doubts,” Brandeis said in February 1916.
The nomination process took four months, and while Brandeis wasn’t required to attend the hearings, it set a precedent. In the end, the Senate approved Brandeis by a 47 to 22 vote on June 1, 1916. Brandeis stayed on the court until his retirement on February 13, 1939.
In May 1916, the New York Times issued a stinging editorial about the impending confirmation of Brandeis.
“The Supreme Court, by its very nature, must be a conservative body; it is the conservator of our institutions, it protects the people against the errors of their legislative servants, it is the defender of the Constitution itself. To place upon the Supreme Bench judges who hold a different view of the function of the court, to supplant conservatism by radicalism, would be to undo the work of John Marshall and strip the Constitution of its defenses,” it said.
But on Brandeis’ retirement in 1939, the Times did an about face on Brandeis.
“The retirement of Justice Brandeis takes from the bench of the Supreme Court one of the great judges of our times,” it said, lauding Brandeis as a Justice who “has regarded the Constitution as no iron straitjacket, but a garment that must fit each generation.”
Brandeis died on October 5, 1941 at the age of 84.