The Supreme Court
Louis Brandeis (1916-1939)
Louis Brandeis entered Harvard Law School at the age of 19 and graduated at the top of his class. He built a hugely successful law practice and was a successful investor as well, amassing a $3 million fortune in the early 1900s. This allowed him to pursue causes that he believed in. He strongly sympathized with the trade union movement, supported women's rights, fought for minimum wage laws and championed the cause for anti-trust legislation. When he fought for these causes, he rarely charged legal fees to his clients. He believed in using the law to protect the powerless from the powerful.
Muller v. Oregon
One famous case that he argued before being appointed to the Supreme Court was Muller v. Oregon, which we discussed in the preceding section. For this case he introduced the “Brandeis Brief,” which included just two pages arguing the constitutional issues and 100 pages arguing the facts of the case. Today the Brandeis Brief style is still considered a model for constitutional cases. Prior to that time, legal briefs concentrated on constitutional arguments and did not focus on the facts of the case.
Louis Brandeis argued in his 1914 books, Other People's Money and Business: A Profession that a retailer should be certain “the goods which he sold were manufactured under conditions which were fair to the workers—fair as to wages, hours of work, and sanitary conditions.”
His tactic worked. Using the facts, Brandeis argued the “reasonableness” of legislative action on this issue.
The Supreme Court ruled unanimously in favor of his clients and upheld Oregon's law, which regulated hours and working conditions for women. Prior to Muller v. Oregon, the Court had ruled against worker protection laws because they were considered a violation of due process.
When President Woodrow Wilson appointed Louis D. Brandeis to the court in 1916, he set off one of the most contentious battles for a Supreme Court nomination. Not only were business leaders out to stop the nomination, but, as the first Jew appointed to the court, there was a major anti-Semitic undercurrent to much of the opposition.
Even though he had graduated at the top of his class from Harvard Law School, the President of Harvard circulated a petition among leading Bostonians opposing the nomination. The four-month confirmation battle was one of the ugliest in history. Leading newspapers including The Wall Street Journal and The New York Times helped to lead the fight against Brandeis.
Just the Facts
Henry Abraham writes in his book, Justices, Presidents, and Senators, that Brandeis' daughter Susan was at a meeting in New York City when she heard about his confirmation. A woman seated next to her commented when she heard the news, “I hear they confirmed that Jew Brandeis to the Supreme Court.” Susan said in response, “You are speaking to the right person. Mr. Brandeis happens to be my father.”
At that time the Supreme Court nominee did not testify before Congress, as is true today. Instead others testified on his behalf. Brandeis stayed quiet during the four months of verbal assaults and finally did get Congressional approval in a near party line vote of 47 to 22, with only one Democrat opposing Brandeis.
Olmstead v. United States
Once on the Court, Brandeis quickly aligned with Holmes and they became the famous dissenting duo. They frequently joined each other in written dissents. One of Brandeis' more famous dissents was in the case Olmstead v. United States in 1928, which was the first wiretapping case in the Supreme Court.
This case took place during the time of Prohibition when the sale, distribution, and consumption of alcoholic beverages was banned by law. Olmstead was a bootlegger (one who made and sold alcohol illegally) who was convicted based on evidence gathered by the FBI using a wiretap on his telephone.
The Fourth Amendment to the constitution states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This is the amendment that is used to protect you against illegal search and seizure in your own home.
His lawyer argued that wiretapping amounted to illegal search and violated his rights under the Fourth Amendment. The Court ruled that electronic eavesdropping did not violate protections against illegal search because it did not involve physical entry. The Court held that by speaking on the phone, Olmstead had broadcast his conversations to the general public. Chief Justice Taft wrote in the majority opinion, “The language of the amendment cannot be extended and expanded to include telephone wires, reaching to the whole world from the defendant's house or office. The intervening wires are not part of his house or office, any more than are the highways along which they are stretched.”
In his dissent, Brandeis argued:
- “The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded and all conversations between them upon any subject, and, although proper, confidential and privileged, may be overheard. Moreover, the tapping of one man's telephone line involves the tapping of the telephone of every other person whom he may call or who may call him …. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.”
Even though Brandeis' dissent was not the opinion of the court, it is one of the most frequently cited opinions in Supreme Court rulings, including landmark cases such as Griswold v. Connecticut, Miranda v. Arizona, and Roe v. Wade. We'll explore the impact of his dissent in greater depth in Collecting Evidence.
Brandeis served on the court for nearly 23 years before retiring in 1939 at the age of 82. He died two years later in 1941.