Impertinent Questions

Impertinent Questions with Melvin I. Urofsky

On the life of Supreme Court Justice Louis D. Brandeis.

HUMANITIES, January/February 2010, Volume 31, Number 1

All rise. For this session of IQ, we recognize Melvin I. Urofsky, professor of law and public policy and professor emeritus of history at Virginia Commonwealth University. Urofsky, who has written and edited fifty-two books, has devoted his career to studying America’s legal history. His latest book, Louis D. Brandeis: A Life, a biography of the lawyer, reformer, Zionist, and Supreme Court justice, was written with the help of an NEH fellowship.

Black and white portrait of Urofsky in a dark suit and tie
Photo caption

Virginia Commonwealth University

What attracted you to Brandeis as a subject?

His relationship with Woodrow Wilson, which I hoped to turn into a dissertation at Columbia. That idea failed, but a few days into the Brandeis Papers at the University of Louisville convinced me that he was a fascinating character tied into many of the important reforms and legal developments of the first half of the twentieth century.

Biographers often talk about living with their subject. What kind of company was he?

I found him interesting company, but not the sort of man one grows close to.

Brandeis grew up in Louisville, Kentucky. How did that shape him?

Recall that Kentucky was a border state, and that during the Civil War Kentuckians were split in their allegiances. The Brandeis family was pro-Union and antislavery, and that certainly affected him. But he also imbibed Southern manners. In his eighties, at a dinner party, he would not sit down until all of the women guests had taken their seats.

Was Brandeis an original meanings or living document man?

Brandeis definitely believed in a living Constitution, and would have thought the whole debate over originalism silly. One started with the intent of the Framers, but then one had to discover how that intent applied to modern times. My favorite quote on this is not from Brandeis, but from William O. Douglas, who, when asked about wiretapping and originalism, replied, ‘What did the Framers know about wiretapping? They didn’t even have phones!’ I think Brandeis would have appreciated that thought.

What do you consider Brandeis’s most important victory as a lawyer?

Brandeis’s most important victory as a lawyer came in Muller v. Oregon (1908), in which he successfully defended a state maximum hours law for women workers. In that case he introduced the so-called “Brandeis Brief,” a great innovation in which he spent only two pages on legal citations and over one hundred on factory reports and other “real world” data to instruct the court on the rationale for the law. The “Brandeis Brief” has become a major tool in the legal arsenal.

His most important opinion as Supreme Court justice?

It would have to be the concurrence that is really a dissent in Whitney v. California (1927), in which he set out the rationale for why free speech is critical in a democratic society. It has become the basis for all modern First Amendment speech jurisprudence. Following closely is his dissent in Olmstead v. United States (1928), which laid the basis for the modern doctrine of a constitutionally protected right to privacy.

Who was his best friend on the Supreme Court? His foe?

The man closest to Brandeis was Oliver Wendell Holmes. They had been friends since the 1880s, and despite some differences, essentially shared the same constitutional outlook. He had no "foes,” although he disagreed with the conservatives. James C. McReynolds, however, hated Brandeis because he was a Jew, and was often crude and offensive in his behavior toward Brandeis.

How did he earn the nickname “Isaiah”?

By the 1930s, Brandeis’s shock of white hair made him look like an Old Testament prophet, and Franklin Roosevelt gave him that sobriquet.

Brandeis often dissuaded young lawyers from joining blue-chip firms in favor of public service. Why did he offer such counsel?

He believed that private firms with their big salaries could always attract talented young lawyers. Public service did not pay, yet the moral rewards were high indeed, as his own career showed. He believed that the best and the brightest should be the people’s lawyers, and modern law firms pay him homage in allowing their partners and associates time to do pro bono work.

Brandeis was a key figure in the Zionist movement. He claimed that he came to Zionism through Americanism. Can you elaborate?

Brandeis was an assimilated Jew of German origin and had little interest in Zionism until he was called in to mediate the great New York garment strike of 1910. There he saw a new type of Jew: learned, willing to stand up for his or her rights, capable of arguing with the employer, and demanding justice, all of which Brandeis saw as quintessentially American. At the same time, a Boston journalist introduced him to Zionism. He concluded that Zionism was trying to create a democratic society in Palestine for Jews persecuted elsewhere, which meshed perfectly with his own Jeffersonian beliefs.

Using justices past and present, assemble your ideal Supreme Court.

I’ll limit it to justices since 1916, because a person who may have been an ideal justice in his time, say Joseph Story, never addressed the type of problems confronting contemporary courts. Clearly Brandeis is at the top of my list, and, in fact, he is usually in the top two or three of all the lists I have seen. He is generally admired as one of the great craftsmen ever to sit on the bench, as well as one of the Court’s great theorists.

As Chief Justice, I would take Charles Evans Hughes, both for his great political skill, but also because I would want at least a few members to have conservative credentials. A completely liberal court would be as dangerous as a completely conservative one. Another conservative I would take is Sandra Day O’Connor, whose conservatism is balanced by a deep commitment to individual liberty. Although I do not like him personally, Felix Frankfurter would round out the conservative bloc. He had a deep commitment to federalism, which I think is important.

William Brennan would be there, as would Hugo Black, and we need a good skeptic, so Oliver Wendell Holmes would be a member as well. Harlan Stone was a great associate justice, but not a very good chief, so he gets a place, but not in the center chair. Finally, I would have Lewis Powell, another craftsman who always blended good jurisprudential arguments with a commonsense attention to the real world.