Andrea Alonso, New York Law Journal
October 24, 2016
The "Jewish Jefferson" is the name given Justice Louis D. Brandeis by Jeffrey Rosen, author of "Louis D. Brandeis: American Prophet." Brandeis was the critic of bigness in government, in business, even in farming. His idyllic vision of an agrarian American Utopia comprised of small farms and family businesses was in line with Jeffersonian ideals. He fervently believed in economic justice, freedom of speech and freedom against unreasonable search and seizure. His words and opinions are most relevant to the times we live in.
This book is part of a series entitled "Jewish Lives." Thus, law school Jeffrey Rosen devotes a good portion of it to Brandeis' transformation into an advocate for Zionism. It was in representing immigrant garment workers during a strike in New York City that Brandeis began his conversion to the Zionist cause. He was impressed by the immigrant Jewish workers' intellectualism, idealism and empathy.
According to the author, "He envisioned a Jewish state that was democratic, secular, and cooperatively owned, a country whose economic success would be shared and embraced by the Arab minorities whose equal civil and political rights it would scrupulously respect." This concept was in keeping with the ideals of David Ben-Gurion (whom he deeply admired) and Golda Meir.
Raised in a secular, cultured middle class Jewish family, Brandeis' intellectual gifts were profound. He graduated first in his class at Harvard Law School with the highest marks in the school's history. He began a practice with a law school friend and classmate but was excluded from his friend's home and wedding because of his wife's anti-Semitism.
Brandeis, in his 37 years of private practice, became one of the most successful lawyers in America—"The People's Lawyer" representing family businesses and minority stockholders. He resolved in 1905 to give an hour a day of his time to pro-bono legal activity.
When nominated by President Woodrow Wilson to the Supreme Court, Brandeis again faced virulent anti-Semitism. Fellow Justice James McReynold refused to shake hands with him or sit next to him and often left the room when he spoke.
Unlike the late Justice Antonin Scalia and the Justice John Roberts court conservatives, Brandeis sought to interpret the Constitution according to concepts and decisions demanded by social and technological change. His goal was to interpret it not by its original understanding but as a synthesis of the history of the United States, opines the author.
Similarly with regard to employees' rights cases in his dissent in Adams v. Tanner (1917), he emphasized that since the Magna Carta, "the law has been forced to adapt itself to new conditions of society, and particularly to the new relations between employer and employees as they arise."
Brandeis invented "the Brandeis brief," a comprehensive collection of studies, facts and evidence used to persuade judges instead of legal abstractions. His prose was simple and direct. He insisted that decisions should be written as narrowly as possible to avoid broad constitutional rulings. The court should not "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied," he said.
Brandeis was so unassuming that he originally refused to move into his chambers at the newly constructed Supreme Court building. He viewed the marble palace as an extravagant monument to big government.
He believed that the "living law" had to adapt to social changes, mass production and technology. In his dissent in Olmstead v. United States (1928) which upheld the wiretapping of a bootlegger's phone, Brandeis forewarned us: "If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."
The author succeeds, in his small tome, in illustrating to the reader that Brandeis' decisions are as important today as they were in pre-war America. He was, indeed, an American prophet.
Andrea Alonso is a partner at Morris Duffy Alonso & Faley.
Reprinted with permission from the October 24, 2016 edition of the New York Law Journal © 2016 ALM Media Properties, LLC. All rights reserved.
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