Mr. Public Interest
Louis Brandeis—inventor of public-interest law, the right to privacy, and his famous Brief, all before he went to the Supreme Court—is worth a fresh look today.
Long before “progressive” was a euphemism favored by people trying to avoid the word “liberal,” the Progressive Movement defined an era of economic and social upheaval similar to ours. At the turn of the twentieth century, America faced challenges still familiar 100 years later: vast inequality, reckless business leaders, financial bust, corrupt government. The response came in a remarkable burst of civic activity and policy creativity. Progressives campaigned for the first public regulations of finance, as well as for health and safety protections, banking reforms, and environmental conservation. This agenda continues to define much of the unfinished progressive project. Yet the era from which it comes is less storied, and less studied, than other times of social change. While today’s activists and officials looking for models and inspiration are far more likely to scrutinize the New Deal or civil rights era, the turn of the last century may offer better models for the early decades of this one.
This period produced many leaders, but none more important than Louis Dembitz Brandeis. At a time when government first sought to tame overweening market forces, Brandeis was the leading legal mind behind those stratagems. For decades, he was both the nation’s preeminent lawyer and among its leading public intellectuals–a combination of David Boies and Paul Krugman, with a touch of the early Ralph Nader thrown in. Really, there were two Brandeises, each worth studying. Brandeis the social activist launched the modern regulatory state. Through legendary legal campaigns and court appearances, he found a way to persuade reactionary federal courts to uphold liberal social legislation. Like Thurgood Marshall, he would be worth our time even if he never sat on the bench. Then there is the second and more widely known Brandeis, who served on the Supreme Court for two decades, crafting a restrained jurisprudence that cleared the path for activist elected officials to reshape government’s role. Brandeis and the Progressives have much to teach today’s progressives. In the face of surging corporate power and widening inequality, they focused on structural reform and enhancing democracy–elements that must be at the heart of our progressive era (if there is to be one).
Melvin I. Urofsky’s new biography, Louis D. Brandeis, brings the jurist’s life and worldview into focus. The book evokes Robert Caro in length, if not in skill–even after 953 pages, Brandeis the man remains opaque. Urofsky implausibly downplays, for example, the impact anti-Semitism had on the lawyer’s world view or drive. But the era’s reform energy crackles. The book comes to vivid life in courtrooms and in congressional hearings, when Brandeis charged into battle with lawyers for logging companies or banks speculating with what he called “other people’s money.”
Born in 1856, Brandeis grew up in the solid, stolid milieu of Louisville, Kentucky–at 78,000 people, a large community in the middle South of that time. His family was in the grain business–striving, successful small firms of the type that dominated most of America’s economy coming out of the Civil War. “There were no large factories employing thousands of people,” Urofsky writes, “but rather many small endeavors–farms, stores, professional offices. People knew one another, their lives entwined in a strong sense of community. Later, after he had seen the devastating effects that industrialization had on American society, Brandeis would look back on what he considered an idyllic era, one free from the curse of bigness.” The Brandeises were Jewish but utterly secular, focused on education and culture. Louis was abnormally taciturn at a young age. Lean, craggy, and ascetic, he was often likened to Lincoln. As he grew he intimidated all around him, cultivating distance and earning the nickname (behind his back) of “Old Isaiah,” after the thundering Hebrew prophet.
He arrived at Harvard Law School in 1875 without ever attending college, earning one of the best records in its history; soon, he thrust himself into so many public scenes that an account of his life can resemble Ragtime with footnotes. He and his friend Samuel Warren opened a thriving commercial law practice. Almost offhandedly, they sparked an intellectual revolution in civil liberties by proposing a “right to privacy” in a famous law review article. (They alit on the need for such a right, deliciously, not because of government spies, but over their concern about early paparazzi who hounded the soirees hosted by Warren and his Boston Brahmin friends.) Brandeis began to represent small businesses against new, enlarged corporations that had found ways to squeeze out competition and extract high rates. First he took on the trolley company, which sought a monopoly with no rate regulation from Boston’s city government. Then he began a long struggle with the New Haven railroad, controlled by J.P. Morgan, which sought to monopolize rail service in New England. He served as lawyer for the muckraking journalists who exposed the “Pinchot Ballinger affair,” in which President William Howard Taft fired the country’s best-known environmental official, who had angered mining interests. He then became New Jersey Governor Woodrow Wilson’s top adviser in his quest for the presidency. After Wilson won, Brandeis helped write the laws establishing the Federal Reserve Bank and the Federal Trade Commission.
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