June 5, 1916 – Louis Brandeis Takes His Seat on the U.S. Supreme Court

On this day in history Louis Brandeis, nominated to the Supreme Court by President Woodrow Wilson on January 28, 1916, finally took his seat after an unsavory political fight fueled by anti-Semitism conflated with charges of alleged “radicalism.” In fact, Brandeis’ appointment was so bitterly contested that the Senate Judiciary Committee, for the first time in its history, held a public hearing on the nomination.

Yet it was hard to make convincing arguments against him. Brandeis was indisputably brilliant, having entered Harvard Law School in 1875 at the age of 18 without a formal college degree.

Brandeis as a student ca. 1876.

Despite having developed vision problems he nevertheless received excellent marks (he achieved the highest grade point average in the history of the school, a record that stood for eight decades). Nevertheless, Brandeis almost didn’t graduate. He was still only twenty, and according to University policy, “no degree [of Bachelor of Laws] will be conferred until the candidate shall have attained the age of twenty-one years.” In the end, the Board of Trustees made a special exemption allowing Brandeis to receive his degree. He then spent an additional year at the law school doing postgraduate work.

Within a year of graduation, Brandeis accepted an offer by his Harvard classmate, Samuel D. Warren, to set up a law firm in Boston. While waiting for the law firm to gain clients, he was appointed law clerk to Horace Gray, Chief Justice of the Massachusetts Supreme Court. Brandeis was admitted to the Massachusetts bar without taking an examination, which, he later wrote to his brother, was “contrary to all principle and precedent.” He still worked for his firm, however, which became quite successful.

Samuel D. Warren, ca. 1875

Between 1888 and 1890, Brandeis and Warren wrote three scholarly articles published in the Harvard Law Review. The third, “The Right to Privacy,” was the most influential, with legal scholar Roscoe Pound saying it accomplished “nothing less than adding a chapter to our law.” In it Brandeis enunciated the view he later echoed in the 1928 Supreme Court case of Olmstead v. United States (277 U.S. 438), 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 was financially able to serve without pay in various public causes. Notably, in 1908, he represented the State of Oregon before the U.S. Supreme Court in Muller v. Oregon (208 U.S. 412), a landmark case defending an Oregon law establishing wages and hours for women laborers. In that case, he introduced what came to be known as the “Brandeis brief.” As the Brandeis University website dedicated to “The Louis D. Brandeis Legacy Fund for Social Justice” defines it:

[It] went far beyond legal precedent to consider the various economic and social factors which led the legislature to pass the law. Many lawyers followed the Brandeis brief and presented relevant scientific evidence and expert opinion dealing with the great social problems of the day mirrored in judicial litigation.”

After Brandeis was finally confirmed to sit on the U.S. Supreme Court in 1916, he served with distinction until February 13, 1939, when he retired, dying only two years later.

Justice Brandeis

In celebration of the centenary of Brandeis’ nomination to the Court, the Harvard Law Library prepared an exhibit as a tribute to Brandeis’ “significant and lasting relationship with HLS.” Be sure and check out the wonderful images selected for the online version of this exhibit, here. (One of which you see below. You can view it at a higher resolution on the website.)

This draft page from Ruthenberg v. Michigan illustrates Brandeis’ process when crafting a Supreme Court opinion. Former clerk, Paul Freund explained “An opinion developed like a coral reef; it might go through dozens of revisions and accretions.” Brandeis Papers, Harvard Law School, Box 44, Folder 6