Justice Brandeis and the Birth of Liberal Judicial Activism

One hundred years ago today, January 28, 1916, President Woodrow Wilson nominated Louis D. Brandeis for a seat on the Supreme Court. Brandeis was the first liberal judicial activist to be appointed to the high court. The nomination sparked the first major confirmation fight in American history.

A century ago, liberals—then styled “progressives”—were the ones complaining about judicial activism. Especially after a set of decisions in 1895 that declared the income tax unconstitutional, fatally weakened the Sherman Antitrust Act, and upheld the breaking of the Pullman strike, the Court was accused of having taken sides in the class-based political controversies of the day. The progressives’ favorite example of judicial bias was Lochner v. New York (1905), in which the Court held (5-4) that a New York law limiting bakers’ working hours interfered with “liberty of contract.” The progressive campaign against the judiciary came to a climax in 1912 when Theodore Roosevelt, running for president as an independent Progressive, proposed that the people be able to “recall” unpopular judicial decisions.

Wilson, the Democratic candidate in 1912, stood with another set of progressives: those who recognized that the courts could be enlisted for reform purposes. Their goal was not to curb judicial power, but to change judicial personnel. Legal academics like Roscoe Pound and Felix Frankfurter began to turn the law schools into the incubators of the future progressive judiciary.

Brandeis was the kind of lawyer they wanted to produce. He earned the highest GPA in the history of Harvard Law School, a record that lasted for over eighty years (today’s accreditors would frown on the fact that he had not graduated from college). He made a reputation as the “people’s lawyer,” defending small firms against large corporations. Brandeis had a near-obsessive fear of “bigness,” as well as a lifelong admiration for the localism of the ancient Greek polis and small-town, small-business America.

In 1908, Brandeis argued before the Supreme Court in defense of Oregon’s eight-hour day law for women workers. It was an example of “sociological jurisprudence,” arguing the economic and social facts rather than the law. Brandeis conceded the anti-court progressives’ point that the courts acted politically. He chose to accept this fact and make the best of it—to approach the court as a political body. Today, his victory in Muller v. Oregon is usually seen as unacceptably “paternalist” or “patriarchal,” because he emphasized the idea that society had an interest in healthy women having healthy children. But it became a milestone in progressive jurisprudence. The Court would take a similar approach in Brown v. Board of Education when it struck down racial segregation, not on the basis of law or history, but on the findings of social psychology.

Brandeis became an increasingly prominent political figure after Muller. He told Congress that railroads should not be given a rate increase, making the fanciful claim that they could save “a million dollars a day” by adopting the principles of “scientific management.” He defended the environmentalists who challenged the Taft administration’s insufficiently green natural-resource policy, embarrassing the president by showing that he had backdated a report by his Secretary of the Interior. When Woodrow Wilson was elected in 1912, he made Brandeis his principal adviser on matters of economic regulation, especially on the Federal Reserve Act of 1913. When Wilson sought reelection in 1916, he realized that he needed to appeal to the progressive voters who had voted for the schismatic Theodore Roosevelt in 1912. So when Supreme Court Justice Joseph R. Lamar died in January 1916, Wilson nominated Brandeis to replace him.

The Brandeis nomination shocked the Senate and sparked the first serious confirmation fight in American history. The Senate held the first extensive hearings on a judicial appointment, because his supporters believed that he would be defeated and needed to make a case for him.

The nature of the conflict is commonly misunderstood. Though Brandeis was the first Jew nominated to the Court, anti-Semitism had virtually nothing to do with the opposition to his appointment. (Felix Frankfurter faced more of a Jewish problem when he was appointed in 1939.) His reputation as a “radical” probably lay behind much of the opposition—he was, to some extent, the target of a conservative “Borking” effort.

Ex-President Taft, who always wanted to be on the Court, was aghast at the nomination. In a private letter, he called it “one of the deepest wounds that I have had.” He called Brandeis “a muckraker, an emotionalist for his own purposes, a socialist . . . a man who has certain high ideals in his imagination . . . of great tenacity of purpose and, in my mind, of much power for evil.” He joined six other past presidents of the American Bar Association who declared that Brandeis was “not a fit person” to be on the Court.

But most of the controversy concerned Brandeis’s professional ethics. The hearings, which lasted for several weeks and produced more than 1,300 pages of testimony and reports, never considered his “judicial philosophy” at all. The chief problem was his tendency to subordinate the interests of his clients to his larger social and political agenda. He often acted, as Brandeis himself put it, not as an advocate but as “counsel to the situation.”

Only after the hearings had concluded did the issue of constitutional interpretation arise.

In the end, Wilson threw his weight behind Brandeis, and he was confirmed by a party-line vote. Wilson was careful to avoid any idea that he was trying to reform or reorient the Court. Brandeis, he said, would “ornament the high court of which we are all so justly proud.” And Brandeis surprised his conservative opponents with his moderation during his time on the Court. Taft became Chief Justice in 1921, and the two reconciled and got along quite well.

But Brandeis did bring a new style of judging to the Court. The lawyer who subordinated his clients’ interests to larger political goals became a judge who did not merely decide cases, but saw the judiciary as a contributor to the policymaking process. He continued, for example, to promote progressive causes by personally subsidizing the work of his acolyte, Felix Frankfurter, and by engaging in questionable “extrajudicial” activity. Brandeis called upon Frankfurter, for example, to organize progressive opposition to the nomination of John J. Parker to the Supreme Court in 1930. Parker was, in turn, truly “Borked.”

Brandeis is perhaps best known for his defense of civil liberties, dissenting when the Court upheld restrictions on freedom of speech and the press after the First World War. But he was not defending individual rights. Like most progressives, Brandeis regarded individual “natural rights” as the domain of laissez-faire conservatives. He and Frankfurter actually advocated the repeal of the Fourteenth Amendment, the umbrella of individual rights. On a collective level, he believed that the public had an interest in the free expression of ideas—in other words, that free speech was a public good rather than a private right. Similarly, when Brandeis voted to uphold government regulation, he tried to make his opinions part of the legislative and policymaking record, explaining why the act in question was not only constitutional, but expedient.

The liberal icon on the Court ran afoul of President Franklin D. Roosevelt, whose New Deal policies offended Brandeis as being too centralizing. He upbraided FDR’s adviser, Tommy Corcoran, about the administration’s promotion of bigness. Above all, Brandeis opposed FDR’s proposal to “pack” the Court by adding six new justices. He helped compose a letter from Chief Justice Charles Evans Hughes to the Senate Judiciary Committee explaining that the Court was in no need of extra help.

By helping to defeat the Court-packing plan, Brandeis helped save the Court for judicial liberalism. FDR ended up packing the Court the old-fashioned way, after the death and resignation of incumbent justices. Brandeis was succeeded by William O. Douglas, a liberal activist in the 1950s and 1960s. (The “Jewish seat” that Brandeis established was filled by Felix Frankfurter, who had more qualms about judicial power than his mentor.) And Roosevelt’s colossal defeat in the Court-packing gambit meant that no subsequent American president would directly confront the Court.

Justice Brandeis’s long legacy can be seen, ironically enough, in Chief Justice John Roberts today. Brandeis did not just want the Court to step aside and let progressive legislators do whatever they wanted (this was more the position of the other liberal judicial icon, Oliver Wendell Holmes, Jr.). He wanted judges to contribute to progressive reform. He made detailed defenses of progressive policy choices in his decisions. Chief Justice Roberts’s creative amendments to the Affordable Care Act—redefining a regulatory penalty as a tax in 2012 and reinterpreting state insurance exchanges to mean federal ones in 2015—are just the sort of contributions that Justice Brandeis would applaud. Those who take the Constitution and the judicial task seriously must work to undo this legacy.