*** Show Promo *** LOUIS BRANDEIS, born November 13, 1856, a champion of freedom of expression as a lawyer and emphasized factual analysis as a judge. This innovative jurist inspires a progressive rock music playlist with John on Crosscurrents, Monday Nov. 13 at 8:00 AM. (Alaska Time) *** Listen live at www.KRNN.org, 102.7fm, or 103.1fm. ***
In 1908, Louis Brandeis turned Ame rican law on its head with the “Brandeis brief.” Brandeis, whose crusades against insurance companies and banks earned him the title “the people’s lawyer,” But it is Brandeis’s insistence on injecting facts and real-world analysis into the law that is his most lasting achievement, and one that resounds especially strongly today, when “reality-based” logic is so embattled.
Brandeis was born Nov. 13, 1856 shortly before the start of the Civil War. As a Southerner and the son of a small merchant, he grew up with a Jeffersonian mistrust of big business. He entered Harvard Law School in 1875, and after graduating first in his class, remained in Boston to practice law. As a young lawyer, he co-wrote an article for the Harvard Law Review, “The Right to Privacy,” that Roscoe Pound, dean of the law school, would later say “did nothing less than add a chapter to our law.”
Brandeis was drawn to social causes. His first major victory was blocking a company from securing a monopolistic right to operate Boston’s subway system. Later, as special counsel to the Interstate Commerce Commission, he took on the railroad barons, insisting that they should not get rate increases “so long as the vicious system of interlocking directorates makes it impossible to know how much of the money is honestly and efficiently spent.”
And he fought for workers. The Brandeis emphasized women’s feeble physical condition compared with men’s, and quotes such authorities as a cotton mill machine operator who told a Senate committee, “I have noticed that the hard, slavish overwork is driving those girls into the saloons.” But the brief was perfectly calibrated for the Supreme Court of its day. In appealing to the justices’ paternalistic concern for women, it found a chink in the court’s pro-business armor.
Brandeis was so enamored of facts and real-world consequences that he found himself moonlighting as a journalist. He wrote a fine series of muckraking articles on the “money trusts” for Harper’s Weekly, which were later published as the book “Other People’s Money and How the Bankers Use It.” To Brandeis, every opinion even on a subject as mundane as whether a state can require ice sellers to get a permit was a chance to hold forth on the case’s practical importance.
The Brandeis brief today bears the truest mark of a transformative idea: as radical as it was in its time, today it looks thoroughly conventional. Generations of litigators were quick to adopt its approach. The civil rights lawyers in Brown v. Board of Education prevailed in large part because of their Brandeisian briefs that presented social science data on the effect of segregation on black children.
We are living in an era when facts, and rational analysis, are on the ropes. But courts operating on the Brandeis model have, at their best, been a check on this disturbing trend. In its proudest moments, from the civil rights rulings of the 1960s to recent decisions reining in war-on-terror excesses, the Supreme Court has insisted on focusing resolutely on the facts, and on the practical effect of the challenged policies on real people.
Brandeis’s true legacy was that as he wrote in a famous dissent, excoriating the majority for not letting government do more to battle the Great Depression “in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles.” SOURCE: New York Times
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