In memoriam Justice Louis D. Brandeis

“The work for Zionism, has seemed to me, on the whole, the most worthwhile of all I have attempted.”

• Justice Louis D. Brandeis wrote to his mother-in-law on December 20, 1917.

Justice Brandeis and Indian Jurisprudence

Justice Louis D. Brandeis. Image Credits: Wikimedia Commons, CC0.

President of the United States of America Franklin Delano Roosevelt displayed great respect for the first Jewish Justice of Supreme Court of United States of America, Justice Louis D. Brandeis, calling him “Old Isaiah”. Justice Brandeis inspired not just American Jurisprudence but Indian Jurisprudence too. In history of Indian Judiciary the pride of place that is held by Justice Krishna Iyer is what is held by Justice Louis D. Brandeis in the USA.  Justice Iyer is called popularly as the “People’s Judge” mainly for borrowing the concept of “Public Interest Litigation” from the USA, the concept which was demonstrated and applied by Louis de. Brandeis, who in his legal practice actively advocated for the interests of the general public and came to be called in Boston as the “People’s Attorney”. Justice Iyer sowed the seeds of “Public Interest Litigation” that he borrowed from the USA in India,  in 1976 in Mumbai Kamgar Sabha, Bombay vs M/S Abdulbhai Faizullabhai & Ors case and as per famous Jurist Professor Upendra Baxi, “the Supreme Court of India was Krishnaiyerised to become the Supreme Court for Indians”,  Indians in-fact should also thank the first Jewish Justice of the Supreme Court of the United States of America, Justice Louis D. Brandeis for pioneering pro bono work he did as an Attorney that became an inspiration for Indian Judiciary too.

Young Brandeis

Louis D. Brandeis was born in Louisville, Kentucky, on November 13, 1856 to Jewish Bohemian parents from Prague Adolph and Frederika Dembitz Brandeis. He was youngest of his parent’s four children.  Brandeis went to high school in Louisville, and completed his education there at age 14. Louis especially admired an uncle, Lewis Naphtali Dembitz a scholarly lawyer and author in Louisville, sometimes known as “the Jewish scholar of the South,” who was to become a follower of Theodore Herzl and an active Zionist. In honour of his uncle, Louis changed his middle name from David to Dembitz. Lewis Naphtali Dembitz was an inspiration for Louis D. Brandeis becoming a Zionist, also it is mentioned that later his wife Alice Goldmark Brandeis inspired him to become a Zionist. Brandeis was an extraordinarily brilliant student, he graduated from Harvard Law School at age 20, with the highest average yet recorded. He was a key player in both the creation of the Harvard Law School Association and the Harvard Law Review.

As a Jurist

Louis D. Brandeis in his office in Boston. Image Credits: Wikimedia Commons, CC0.

Brandeis embarked on a lucrative legal career that garnered wealth and prestige. As per Philippa Strum, Brandeis treasured Alfred Zimmem’s The Greek Commonwealth and agreed with the author’s conception of democracy, that democracy is meaningless unless it involves the serious and steady co-operation of large numbers of citizens in the actual work of government. As per Brandeis education was important for reaching actual democracy, he mentioned, “Our great beneficent experiment in democracy will fail unless the people, our rulers, are developed in character and intelligence” 

Coming to the concept of Brandeis Brief, and Muller v. Oregon (1908) case now, as an attorney, known by that point for his outstanding advocacy and for his interest in social justice causes, Brandeis had been asked to prepare a brief for the Supreme Court on behalf of the State of Oregon.  State law had limited working hours for women, and an employer argued that the law was a violation of the equal protection clause of the Fourteenth Amendment.    In one of his best and earliest examples of doing pro bono work, Brandeis prepared the brief and argued the case using a technique never used before.  This technique, which became known as the “Brandeis Brief,” had only two or three pages of legal arguments, but about 100 pages of social science and economics arguments. 

Now let’s move to his public works, one of the public service works that was most significant to him was his creation of the Savings Bank Life Insurance Company in 1907.  It was for this and other work of this type that he became known as the “People’s Attorney” or the “People’s Lawyer.” The Brandeis School of Law at the University of Louisville adopted the Brandeis principle of public service when in 1990 it implemented a requirement that all students must complete 30 hours of public service as a requirement for graduation.  Most students complete far more than the minimum each year, and the program has become an example in legal education.

Brandeis Jurisprudence

Political cartoon depicting a “Chorus of Grief Stricken Conservatives” as the Brandeis appointment dismays “kept” journalism, privilege, Wall Street, monopoly, and stand-pattism in 1916 Puck cartoon. Image Credits: Greene via Wikimedia Commons, CC0.

The term “privacy” does not appear in the United States Constitution, but scholars routinely credit the article by Louis D. Brandeis and Samuel Warren published in the Harvard Law Review in 1890,  as the seminal source of the right to privacy. The existence of the internet and its unique challenges to privacy, free speech, and national security did not exist during the lifetime of Brandeis, but he did foresee that technology and advances in technology should be considered as noted in the earlier reference on privacy when he wrote in his Olmstead dissent that technology might evolve in ways that might affect privacy.

Justice Louis D. Brandeis. Image Credits: Harris & Ewing, photographer via Wikimedia Commons, CC0.

As per Vincent Blasi, in his work “The First Amendment and the Ideal of Civil Courage: The Brandeis Opinion in Whitney v. California”,  In Whitney v. California case, Justice Brandeis   reiterated many of the First Amendment themes he had developed since 1920 and issued perhaps the most compelling defense of free speech in the Court’s history. Justice Brandeis laid down the extremely demanding version of the “clear and present danger test”, he mentioned and I quote, “ Whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger, whether the danger, if any, was imminent, and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the Legislature. The legislative declaration, like the fact that the statute was passed and was sustained by the highest court of the State, creates merely a rebuttable presumption that these conditions have been satisfied. ” Most famously, in 1928 Brandeis issued his ringing dissent in Olmstead v. United States, denouncing the federal government’s use of wire-tapping as a violation of the Fourth and Fifth Amendments.

Brandeis as a Zionist

Justice Louis D. Brandeis. Image Credits: Times via Wikimedia Commons, CC0.

Justice Brandeis said, “ Every American Jew who aids in advancing the Jewish settlement in Palestine, though he feels that neither he nor his descendants will ever live there, will likewise be a better man and a better American for doing so”. In fact Kibbutz Ein Hashofet founded 1937 in Israel is named after him—“Ein Hashofet” meaning literally “Spring of the Judge,” the name chosen due to Brandeis’ Zionism. It is said next to Theodor Herzl, the father of modem Zionism, Brandeis became the most revered figure in the whole American Zionist pantheon. 

As per Jonathan D. Sarna expert on American Jewish history, during his three decades as an American Zionist leader, Brandeis helped to transform the movement’s image and identity. This may have been, in retrospect, his most important contribution to the cause: his success in (1) legitimating, (2) Americanizing and (3) idealizing Zionism’s message. He also helped the Zionist movement raise an unprecedented arnount of money, including substantial sums from his own pockets. To the cause, he donated $171,538 between 1914 and 1921 and a lifetime total (including half of his residual estate) of more than $1.6 million. 

Philippa Strum in his book “Louis D. Brandeis: Justice for the People” gives her perspective on why Brandeis was a Zionist. Brandeis’s “knowledge of classical Greece [and especially his admiration for Alfred Zimmern’s study, The Greek Commonwealth], his relationship with his uncle [Lewis Naphtali] Dembitz, his mediation of the 1910 garment workers’ strike, an extraordinary meeting with an English Zionist [Jacob de Haas], and another one with a Palestinian Jew [Aaron Aaronsohn]” with contributing to his late conversion to Zionism. As per Jonathan D. Sarna, the key to Zionism’s legitimacy, as Brandeis understood it, lay in its link to Americanism. This echoed a favourite theme of turn-of-the century American Jews, who delighted in uncovering Jewish aspects of the nation’s past, the so-called “Hebrew mortar” that provided the cement for the foundations of American democracy. Non-Jews too became interested in Zionism thanks to Brandeis, most notably his friend Norman Hapgood, the editor of Harper’s Weekly, and so for the first time, the movement gained access to major journals of opinion. To conclude the author would like to say, there is no age to become a Zionist even Louis D. Brandeis became a Zionist late in his life, what you need to have is, determination to support human rights of one of the historically most oppressed people and you become a Zionist, an ideology that propagates peace for the Jewish people in a Jewish homeland and peace for the entire world. Bharuch Hashem we want peace, but Jews will get suppressed no more, the world needs to understand this, and I hope United Nations understands this too.