January 28, 1916 – President Wilson Nominates Louis Brandeis to the U.S. Supreme Court

On this day in history, President Woodrow Wilson nominated the successful Boston attorney Louis Brandeis to the Supreme Court. An ugly and hard-fought battle ensued, tinged by anti-Semitism. Brandeis was the first Jew ever nominated for the Supreme Court.

Brandeis was born on November 13, 1856, in Louisville, Kentucky. In 1875, at the age of 18, Brandeis entered Harvard Law School without a formal college degree. Although Brandeis was not the required age of 21, the Harvard Corporation passed a special resolution granting him a bachelor of law degree in 1877. After a further year of legal study at Harvard, he was admitted to the bar.

Louis Brandeis c. 1900

Louis Brandeis c. 1900

In 1879 Brandeis began a partnership with his classmate Samuel D. Warren. Together they wrote one of the most famous law articles in history, “The Right to Privacy,” published in the December 1890 Harvard Law Review. In it Brandeis enunciated the view he later echoed in the Supreme Court case of Olmstead v. United States (277 U.S. 438, 1928), in which he argued that the makers of the Constitution, as evidence of their effort “to protect Americans in their beliefs, their thoughts, their emotions and their sensations …” conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.”

By 1890 Brandeis had developed a lucrative practice and often donated his services pro bono to various public causes. He also took part in the effort to bring legal protections to industrial laborers. In that capacity, in 1908 he introduced, in a case before the Supreme Court, the so-called “Brandeis Brief.” It went far beyond legal precedent to consider the various economic and social factors which related to the law in question. Many lawyers adopted his practice and began to include in their briefs relevant scientific evidence and expert opinion that might affect the judicial litigation.

When Wilson nominated Brandeis to the Supreme Court on Jan. 28, 1916, six former presidents of the American Bar Association and former U.S. President William Howard Taft denounced Brandeis for his allegedly radical political views. Pro-business Senators and corporate titans like J.P. Morgan objected to Brandeis’s efforts in favor of workplace-safety and labor laws. But at the end of a grueling four-month confirmation process, Brandeis was approved by the Senate in a 47 to 22 vote and took his seat on June 5, 1916, becoming the first Jewish Justice on the high court.

Justice Louis Brandeis

Justice Louis Brandeis

Although the New York Times had opposed Brandeis in 1916, at his retirement in 1939 the paper opined:

The retirement of Justice Brandeis takes from the bench of the Supreme Court one of the great judges of our times.”

Not everyone changed their mind about Brandeis. Supreme Court Justice James Clark McReynolds, who served on the Court from October 12, 1914 to his retirement on January 31, 1941, would not accept “Jews, drinkers, blacks, women, smokers, married or engaged individuals” as law clerks. He refused to speak to Louis Brandeis for three years following Brandeis’s appointment and, when Brandeis retired in 1939, did not sign the customary dedicatory letter sent to justices on their retirement.

Justice James McReynolds

Justice James McReynolds

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