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Erik Visits an American Grave, Part 240

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This is the grave of Louis Brandeis.

Born in 1856 in Louisville to secular Jewish immigrant parents from Prague, Brandeis grew up there mostly, although the family did return to Europe for a few years in the 1870s when the American economy slumped. The Brandeis family were relatively prosperous merchants who had the resources to start over after the anti-Semitic violence that accompanied the 1848 European revolutions. They were also progressives and abolitionists, angering many Louisville elites with their views. A family focused on high culture trained young Louis in this; he excelled at school and entered Harvard Law School at the age of 18, having done advanced studies while his family was in Germany for the previous three years. Despite the fact that he had very bad eyesight, so bad that doctors told him to stop studying the law because it was too much reading, he ended up paying people to read the textbooks to him and then he just memorized everything. This was no ordinary young man. The Massachusetts bar just admitted him without making him take any kind of exam. Why bother with formalities?

Brandeis started his own firm with a partner and excelled at litigation. But he was always interested in higher legal standards and in a progressive vision of the law. He published an 1890 article in the Harvard Law Review laying out the right to privacy as a constitutional right that was central to Roe and remains a key doctrine of American law today. It was almost immediately influential, cited in cases just a few years after it’s publication and states passing laws granting these rights. Brandeis was clearly a rising star.

Brandeis also believed in a wide range of reforms. That became most clear with his work in Mueller v. Oregon, when his landmark brief explaining in great detail the conditions of work for women laborers led the Supreme Court to make an exception to its overwhelming belief in the doctrine of contract, declaring an Oregon maximum hours law for women constitutional. In this, he built on the work of Progressive reformers on the ground, including Florence Kelley, who had done much to detail these horrible working and living conditions. On top of this, Brandeis was involved in the conservation movement, in anti-trust, and in anti-consumerism, the latter somewhat ironic as he was a millionaire.

In 1912, Brandeis was a big supporter of Woodrow Wilson. He wasn’t always a Democrat, as he wanted Robert LaFollette to run as a Republican, but he liked Wilson’s anti-trust positions. Because Brandeis was so influential, Wilson wanted to pay him back. The problem was that the capitalists hated him. So that torpedoed Wilson’s idea to name him Attorney General or Secretary of Commerce. Yet, Brandeis remained influential, helping to develop the Federal Reserve and the Federal Trade Commission. So finally, in 1916, Wilson nominated Brandeis to the Supreme Court.

That was one of the most controversial nominations to the Court in American history, for two reasons. One was his anti-corporate politics. The other is that he was a Jew. In fact, Brandeis had the first ever public hearing on a Court nomination, after powerful people such as William Howard Taft and Elihu Root went all-in against him. He was pilloried in major newspapers for his “rabid” attack on corporate power, while Henry Cabot Lodge responded by saying that the only reason Brandeis was nominated is because he was a Jew. Taft believed this too. The anti-Semitism of the Republican elite was very much on display. But in the end he was confirmed fairly easily by a Democratic dominated Senate, 47-22. Notably though, only 3 of the 24 Republican senators approved him, including La Follette and George Norris, while every Democrat voted in favor except for Francis Newlands.

Not surprisingly, Brandeis kept up his pro-worker and anti-corporate views on the Court. He and Oliver Wendell Holmes were writing dissent after dissent against a right-wing Supreme Court. That would define most of Brandeis’ career on the Court. He continued his advocacy for the right of privacy in many of his writings and was a strong supporter of free speech. He had a somewhat complicated relationship with the New Deal, as his Progressive opposition to monopolies was challenged by a new era of Democratic policies that combined big government with a willingness to work with big capital in the name of efficiency. So Brandeis hated the National Recovery Administration and gladly voted to declare in unconstitutional, letting FDR know that what he hated about it was the bigness. He was also pretty outraged by the court-packing scheme, even if it might have helped him be in the majority more frequently. Yet at the same time, he certainly supported many of the New Deal policy goals. Basically, he was a man both behind and ahead of his time by the 1930s.

I am sure that there is much more to say about his legal career and I will hand it over to the legal experts here to do so in comments.

Interestingly given his secular life, Brandeis also became the nation’s leading Zionist in the 1910s, heading Zionist organizations that decade and continuing his support of the cause while on the Court. Basically, he believed an independent state to be the best solution to anti-Semitism. He certainly wasn’t wrong in that, although unfortunately, the apartheid-esque tactics of Israel toward the people of Palestine, placing them into very similar conditions to the ghettos of European Jews, have turned a great idea into a morally bankrupt and hypocritical state. In any case, given the overwhelming anti-Semitism of the day, including what he faced from his own colleagues on the Court, it made a lot of sense at the time.

Brandeis retired from the Court in 1939 and died of a heart attack two years later.

This is also the grave of his wife Alice Goldmark Brandeis, but I can’t find out too much about her. She also came from a wealthy German-Jewish family, niece of the composer Karl Goldmark. But she was pretty sickly and frail for much of her life and largely stayed behind the scenes. She did step out into a more public role in defending Sacco and Vanzetti from their execution for being Italian anarchists by the state of Massachusetts and generally was also a supporter of many progressive causes over the years.

Louis Brandeis is buried at the University of Louisville Law School, Louisville, Kentucky.

This grave visit was funded in part by LGM readers and for that I am highly appreciative. If you would like to see this series visit more of the nation’s great Progressive Era reformers, you can donate to cover the expenses here. Florence Kelley is in Philadelphia and Jane Addams in her home town way out in northwestern Illinois. Certainly I’d love to visit them. Previous posts in this series are archived here.

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