Louis D. Brandeis: Dissent in Olmstead v. United States

About the Author

During his long life, Louis Dembitz Brandeis had four related but distinct careers. After graduating from Harvard Law School and practicing law for a year in St. Louis, Missouri, he became a highly successful attorney in Boston, Massachusetts, and a pioneer in several aspects of legal practice, including that of donating services, without fee, on behalf of public causes. Then, beginning in the mid-1890s, he devoted increasing efforts to various reform crusades, to emerge as one of the country's leading progressive reformers. In August 1914 he assumed the leadership of American Zionism, successfully shaping a tiny and impotent organization into an efficient and effective social movement aimed at securing a Jewish homeland in Palestine. Finally, from 1916 until his retirement in 1939, Brandeis served as one of the most respected and venerated associate justices in the history of the Supreme Court. His work in any one of those four fields would have entitled him to a place in U.S. history; his prominence in all of them merits his recognition as one of America's most accomplished and influential figures.

Brandeis was born on November 13, 1856, in Louisville, Kentucky. His parents were Bohemian-Jewish immigrants who were part of a group of related families who left Europe after the failure of the liberal revolutions of 1848. They were well educated, cultivated, and nonreligious. Brandeis attended Louisville public schools, but in the early 1870s, when the American depression crippled his father's business, the family moved to Europe. They returned in 1875, and Brandeis entered Harvard Law School. He compiled a legendary record at Harvard, graduating at the age of twenty at the head of his class. Settling in Boston after an unhappy year in St. Louis, he soon built a successful legal firm and became a prominent, if sometimes controversial attorney. In 1891 he married Alice Goldmark, a second cousin from the group of families who had come to America together.

With growing financial independence Brandeis embarked upon a series of reform ventures. Beginning in Massachusetts, he worked to control public franchises, achieved a compromise on behalf of consumers of natural gas in Boston, devised and implemented a new system of life insurance for Massachusetts workers, and battled tirelessly for seven years to defeat a scheme to monopolize New England's transportation system. Somehow he found time to defend, before the Supreme Court, several state laws regulating workers' hours and wages; in one such case—Muller v. Oregon (1908)—he invented a new sort of legal argument (thereafter called the “Brandeis brief”) by relying as much on sociological evidence as on legal precedent to justify state regulatory legislation. By 1910 Brandeis had emerged on the national stage with a reputation as “the people's attorney.” He plunged into numerous reform activities, encompassing fields as diverse as conservation, railroad rates, labor relations, and antitrust. During the presidential campaign of 1912, he met and greatly impressed the Democratic candidate, Woodrow Wilson; when Wilson won the election, Brandeis became a close adviser and an architect of some of the principal reform legislation in Wilson's first term. It was also during this period that he undertook the leadership of the American Zionist movement and virtually revolutionized its operations, reputation, and activities.

In January 1916, Wilson nominated Brandeis to the Supreme Court. There followed an extremely bitter and protracted Senate hearing that lasted for months. Brandeis's opponents charged that he was a “radical” who lacked the judicial temperament. No doubt the opposition was in part caused by the fact that no Jew had ever served on the Court, and some Americans were wary of that possibility. He was eventually confirmed on a largely party-line vote in the Senate. For the next twenty-three years he performed the functions of a judge, becoming well known for some of his dissents with fellow justice Oliver Wendell Holmes, Jr., and for his pathbreaking opinions in the realms of free speech, labor, federal jurisdiction, and the right to privacy. By the time he retired, in 1939, he was universally recognized as one of the most distinguished justices in the Court's history. Some of his dissents have become standard legal doctrine, and he continues to be commonly regarded as one of the greatest judges to sit on an American bench.

In early October 1941, Brandeis—retired from the Court for almost three years but still living in Washington—suffered a heart attack. He died a few days later, on October 5. His ashes were placed at the entrance of the University of Louisville's law school, which is now named in his honor.