Louis Brandeis: Pro Bono Lawyer

What the lawyer needs to redeem himself is not more ability or physical courage but the moral courage in the face of financial loss and personal ill-will to stand for right and justice.[1]

— Louis D. Brandeis

 

Louis Dembitz Brandeis (1856-1941)
Louis Dembitz Brandeis (1856-1941)

He was called the “People’s Attorney”[2] and “helped to create the American pro bono tradition.”[3] Commencing with his battle against corrupt Boston streetcar franchises, he blazed a new trail of public interest pro bono work that altered the landscape of America’s economic and public life and forever changed how law is viewed and practiced. He thus remains our country’s most famous pro bono lawyer. And on the United States Supreme Court, he became one of the nation’s greatest justices as he strove to protect civil liberties and guard against the concentration of power wherever it may be. There is no better time than October, “Celebrate Pro Bono Month,” to look back at this remarkable lawyer.

Louis D. Brandeis was born in 1856 in Louisville, Kentucky. His parents came to America after the democratic forces failed in their revolution against the Austro-Hungarian Empire in 1848. He grew up in a cultured and affluent home and was greatly inspired by his brother, a lawyer and abolitionist. Among his earliest memories were helping his mother carry food and coffee to Union soldiers camped on his family’s lawn.[4]

After studies in Dresden, Germany, Brandeis earned the highest grades ever at Harvard Law School and remained for an additional year for post-graduate work. After practicing less than a year with a St. Louis firm, he relocated to Boston and opened a lucrative firm with a former law school classmate.[5] It was at this time that he became “a courtroom advocate to be feared by opponents,” chiefly because of his mastery of the facts.[6]

A New Kind of Lawyer

As a lawyer, Brandeis found that he served his clients best by understanding the economic, social and political context in which their problems evolved. He said: “Knowledge of the decided cases and the rules of logic cannot make a great lawyer…. The controlling force is the deep knowledge of the human necessities.”[7] He even said that “a lawyer who has not studied economics and sociology is very apt to become a public enemy.”[8] Brandeis further observed that a lawyer is “far more likely to impress clients by knowledge of facts than by knowledge of law.”[9] His clients were impressed. He was a millionaire in his 40s[10]. This was at a time when most lawyers made less than $5,000 a year.[11]

An example of Brandeis’s holistic approach, focusing on all the facts, was his successful mediation of a shoe factory strike in 1902. The factory owner could not understand why his generally well-paid employees refused a pay cut when sales slowed. Brandeis studied the situation and confirmed that the workers were well-paid, but it was irregular and seasonal. He conceived a plan for spreading production out all through the year so that the workers had a consistent income.[12]

Brandeis tried to solve problems, not simply vindicate his clients’ legal rights. Accordingly, he crafted a sliding scale that resulted in gas rates falling in Boston and his revelation of corrupt practices of insurance companies was accompanied by his blueprint for restructuring the industry to correct the problems. His litigation against the railroads presented him with an opportunity to propose a more efficient system for their management that all found beneficial. “Brandeis developed a reputation as a lawyer who knew more about his clients’ businesses than they did.”[13] His endeavors caused him to challenge the prevalent view that in business larger is more efficient as he explained the “evils of bigness.”[14]

Brandeis also had strong views on the duty of lawyers in society that reflected his reforming zeal. In 1905 he gave a widely acclaimed address to the Harvard Ethical Society titled “The Opportunity in the Law.” He said, “Instead of holding a position of independence, between the wealthy and the people, prepared to curb the excesses of either, able lawyers have, to a large extent, allowed themselves to become adjuncts of large corporations.”[15]

A New Kind of Pro Bono Lawyer

Brandeis’s immense financial achievement allowed him to give increasing time to his pro bono cases on the behalf of workers, consumers and small shareholders. He was the first lawyer to do such wide-scale public interest work without a fee, “a practice that many of his contemporaries viewed as eccentric.”[16] Before long, he was doing so much public service pro bono that it was having a negative impact on his law firm. Therefore, he reimbursed the firm for every pro bono hour he expended.

Brandeis explained his love for pro bono: “Some men … delight in automobiles and yachts. My luxury is investing my surplus effort … to the pleasure of taking up a problem and solving, or helping to solve it, for the people without receiving compensation.”[17]  A teetotaler and famously frugal (although famously generous to his friends and the needy), Brandeis’s “only material passion was for ice cream.”[18]

Brandeis’s imaginative problem solving skills were not only called upon by workers but also by governments. He devised antitrust policy for President Woodrow Wilson and provided similar services for President Franklin Roosevelt regarding unemployment compensation, wage and hours laws, public works plans and unionization policies.[19]

In the case of Lochner v. N.Y. (1905),[20] the Supreme Court struck down a minimum-hour statute for bakers because the justices found no correlation between the law and health. Brandeis decided to give the court just that when he defended a maximum hour for women law in Muller v. Oregon (1908).[21] His marshaling of facts was best exemplified in his brief filled with statistics and other scientific and medical data showing the harmful effects of overworking women such as illnesses, alcoholism, giving birth to sickly babies, and child neglect.[22]

His unprecedented brief, which was praised by the court in its opinion upholding the law, contained two pages of legal argument and 100 devoted to sociological data.[23] Henceforth, a brief packed with non-legal arguments and statistics is known as a “Brandeis Brief.” Ever since, such briefs have been used to defend and condemn government policies, ranging from support of health and safety regulations to attacking racial segregation.[24]

Justice Brandeis served on the Supreme Court  from 1916 to 1939.
Justice Brandeis served on the Supreme Court from 1916 to 1939.

Supreme Court Justice

In 1916 Woodrow Wilson appointed Brandeis, with no prior judicial experience, to the Supreme Court, the first Jewish justice. After a long and bitter fight in the Senate, where fear of his progressivism and, to a lesser extent, anti-Semitism played a role, he was confirmed with a vote of 47 to 22.[25] On the court he forged a close bond with Justice Oliver Wendell Holmes Jr., and together, often in eloquent dissent, they stood for broad protection of freedom of speech and against the court second-guessing the reasonableness of legislation.[26]

He sided with the individual against government, states against the federal government and workers against large corporations. In his opinions, Brandeis, as always, focused on the facts. He said, “the courts have reached their conclusions largely deductively from preconceived notions and precedents. The method I have tried to employ … has been inductive, reasoning from the facts.”[27]

The kindly Brandeis worked well with the other justices; yet he had to endure the blatant anti-Semitism of Justice James McReynolds of Tennessee, who walked out of conferences whenever Brandeis spoke. No group photograph of the justices could be taken in 1924 because seating positions were dictated by seniority, but McReynolds refused to sit next to Brandeis.[28]

Though often in dissent in alliance with Holmes, Brandeis would strategically resist doing so when he had dissented in a lot of recent cases, thereby strengthening the dissents he did make. While once concurring with Justice Stone, he said, “I think this is woefully wrong, but do not expect to dissent.”[29] He did oppose the construction of the Supreme Court building because he thought it too opulent, and he liked the symbolism of the court continuing to hold sessions in the Capitol, halfway between the House and Senate.[30]

Other Contributions

Brandeis impacted the law and society in other ways than at the bar and on the bench. He helped to found the Harvard Law Review[31] and co-authored an 1890 article in it that laid the foundation for the recognition of the tort of invasion of privacy.[32] Twenty-five years later, Roscoe Pound said that the article did “nothing less than adding a chapter to our law.”[33] This would evolve into a constitutionally protected right against unwarranted government intrusion. In Olmstead v. U.S. (1928), Brandeis proclaimed: “The right to be alone — the most comprehensive of rights, and the right most valued by civilized men.”[34]

Before becoming a justice, Brandeis taught law at night at Northeastern College in Boston.[35] In 1914 he agreed to head the American Zionist movement to help found an enlightened and democratic Jewish state in Palestine.[36] And he objected to what we call today “identity politics.” He said, “There is room here for men of any race, of any creed, or any condition in life, but not for Protestant-Americans, or Catholic-Americans, or Jewish-Americans, nor for German-Americans, Irish-Americans, or Russian-Americans.”[37]

At the age of 84, Justice Brandeis retired from the Supreme Court in 1939. He died in his Washington apartment in 1941 of heart failure.

“Brandeis left behind a tradition of lawyers contributing their efforts to public service.”[38] And he set the example of living by his advice: “If we would guide by the light of reason, we must let our minds be bold.”[39] 

Notes

  1. Louis D. Brandeis, Speech before Harvard Law Review Assoc., 22 June 1907, quoted in Alfred Lief, The Brandeis Guide to the Modern World 171 (1920).
  2. Bernard Schwartz, A Book of Legal Lists 215 (1997).
  3. Clare Cushman, ed., The Supreme Court Justices 333 (1993).
  4. Id. at 331-32.
  5. Id. at 332.
  6. Melvin I. Urofsky, “Brandeis, Louis Dembitz” in The Oxford Companion to the Supreme Court of the United States 83 (Kermit L. Hall ed., 1992).
  7. Id.
  8. Brandeis, “The Living Law, 10 Ill. L. Rev. 461, 470 (1916).
  9. Cushman at 332.
  10. Id.
  11. Urofsky at 83.
  12. Cushman at 332.
  13. Urofsky at 83.
  14. See Schwartz at 215.
  15. Urofsky, at 83.
  16. Id.
  17. Cushman at 333.
  18. Id. at 334.
  19. Id. at 333.
  20. 198 U.S. 45.
  21. 208 U.S. 412.
  22. Mary Ann Harrell, Equal Justice Under Law 63 (1975).
  23. Cushman at 334.
  24. See T. R. van Geel, Understanding Supreme Court Opinions 57 (2d. ed. 1997).
  25. Cushman at 334.
  26. See Sandra Day O’Connor, The Majesty of the Law 117 (2003).
  27. Schwartz at 13.
  28. Cushman at 329-30.
  29. O’Connor at 119.
  30. David M. O’Brien, Storm Center 119 (2008).
  31. The Supreme Court of the United States, Its Beginnings & Its Justices 172 (Commission on the Bicentennial of the U.S. Constitution, 1992).
  32. Lawrence M. Friedman, A History of American Law 631 (2d. ed. 1985).
  33. Letter from Roscoe Pound to William Chilton (1916), quoted in A. Mason, Brandeis: A Free Man's Life 70 (1956).
  34. 227 U.S. 438, 478.
  35. Robert Stevens, Law School, Legal Education in America from the 1850s to the 1980s, 80 (1983).
  36. Cushman at 334.
  37. Louis D. Brandeis quoted in E. Digby Baltzell, The Protestant Establishment 191 (1964).
  38. Cushman at 335.
  39. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932).

Russell Fowler RUSSELL FOWLER is director of litigation and advocacy at Legal Aid of East Tennessee (LAET) and since 1999 has been adjunct professor of political science at the University of Tennessee at Chattanooga. He served as the law clerk to Chancellor C. Neal Small in Memphis and earned his law degree at the University of Memphis in 1987. Fowler has many publications on law and legal history, including many in this Journal where his regular column, “History’s Verdict” appears several times a year.

 
 

 

          | TBA Law Blog