Brandeis As Jurist: Craftmanship with Inspiration

On January 26, 1965, Brandeis' grandson, Walter Raushenbush, gave a lecture at the University of Louisville School of Law. With the kind permission of the Raushenbush family, that speech is reproduced here.

It's a great pleasure and privilege for me to launch this series of annual lectures on "Mr. Justice Brandeis and the Growth of American Law." Being the Justice's grandson, you know, is not an unmixed blessing. If I could count on the votes of every person who ever said to me, "My, but you have a lot to live up to!" -- I'd be in politics! So, it's nice to receive a dividend like this one.

This many years away from the life of Brandeis, I'll assume that the curtain of awe surrounding him has lifted enough for me to refer to him as LDB, to expedite our present purposes. Yet I wonder if the curtain of awe will ever lift for those who knew him. Here was a bright young man from Louisville who went to Harvard Law School, and all he did, despite severe eye trouble, was to graduate at a younger age than any previous graduate, with a higher academic record than any previous graduate. After brief practice in St. Louis, he entered practice in Boston, and what had he accomplished even before he had married in his mid-thirties? Among other things, he had discovered that he could make more money in law practice than he could reasonably spend, and made a conscious decision to live on a reasonably austere scale so that he would be completely free to devote only part of his time to income-producing practice. The rest of his time, he increasingly made available without fee to give legal service to various good causes.

Despite giving more of his time to civic causes than the modern lawyer would dream of, by good use of time and shrewd investment, he accumulated a substantial estate, invested so that the 1929 crash made hardly a dent in it. All this was in addition to his more widely known accomplishments which I shall touch on here and which, I take it, will be discussed in detail in future lectures in this series.

I recently was chatting with a good friend, a Milwaukee lawyer, who told me he was reading Mr. Todd's book, Justice on Trial, the story of the fight over LDB's confirmation for the Supreme Court -- a fight that began 49 years ago. My friend said the book seemed rather slanted, in that LDB emerged, as he read it, as nothing less than some sort of a saint. Having known LDB and having known the opinions of many who knew him far better than I, I could only tell my friend that the book wasn't as much as a distortion as he thought. After all, FDR referred to LDB as "Isaiah." And one of his law clerks, James Landis, in telling of his clerkship, said, "Yes, I am an idolater.  But the idolatry does not focus upon a graven image."

Certainly for me, a grandson who was thirteen when LDB died, his was no graven image, nor even the sort a youngster would normally idolize. But what an impression he made on me! My grandmother, several years younger, was a lovely but quite human lady, very able to become irritated with a doubtless impertinent boy, and also very able to irritate him in turn. For example, at their summer cottage on Cape Cod, where I spent my summers, Grandmother always served the dinner, including carving the duck or whatever the main course was. I am told that her doing so stemmed from a day in the 1890's, soon after their marriage, when an old family friend came to dine. LDB tried to carve the chicken, and made a mess of it. The friend had enough wit and enough seniority to make him bold enough to say, "Mrs. Brandeis, do you always serve minced chicken?" Thenceforth, Grandmother carved and served, and during those Cape Cod summers, she served everyone the same small portions she then thought appropriate for LDB (who was past 80). She was very gracious about serving second helpings of similar size, but in my biased recollection, most ungracious about serving the thirds and fourths that I usually wanted.

By contrast, I have no recollection of ever being angry at LDB, or of even seeing him show anger. I had a clear understanding that time spent with him was precious, yet I spent much. Summertime was his vacation time, of course, and he believed in vacations, having said that man could do twelve months' work in eleven months, but not in twelve. No doubt his vacation time was renewing for him, though his vacation activities as I recall them would put most of my own present work days to shame. Systematic disposal of mail, a great deal of reading, many talks with important people, preparation of packages of books and papers for sending to the University of Louisville, newspaper reading, regularly scheduled rest, and still a goodly time spent with the family -- these filled his vaca­tion days.

I remember especially well one conversation that may tell some­thing about him. He liked to get me into serious talk, and on this day we chanced to be talking about the fact that in Madison my parents rented the house where we then lived. He explained that he rented the apartment on California Street in Washington where he and Grandmother lived, and that he owned the Cape Cod summer house. I questioned his meaning, and discovered for the first time that you could live on a piece of real estate without paying rent! You must try to put yourself in my place, about ten years old, to understand that I naturally next asked why any fool would pay rent for a place when it was possible for him to own it and pay none. He could well enough have responded simply that it took money to buy property and become its owner, and that many renters couldn't afford to buy. Indeed, he did say that, but it was only a start. For several minutes, he explained about how an owner, such as our landlord, would have to pay taxes, insurance, interest on a loan, major main­tenance, and so on, taking risks a renter could avoid. Oddly, I remem­ber that discussion much more vividly than any other we had. Per­haps a teacher of real property law was spawned then and there!

Reminiscence is fine, and LDB would approve. But he had a zest for getting on with the work, too, and an impatience with too much mere loafing. Nat Nathanson, a law professor at North­western University, clerked for LDB in 1934-35. After several months, Nat mustered the courage to ask if he could take a weekend off for a visit to New York. Permission was granted, and off he went. When he presented himself for work again on Monday, LDB greeted him with, "Well, sir, have you quite recovered from your debauch?" Humor, yes; but also the revealing of a Spartan streak. LDB would not expect us to "live up to" him; he believed too much in the free­dom and individuality of man for that. Besides, in my case, he knew me as a boy well enough to see the lazy streak already amply revealed. And sure enough, I grew up to think of loafing not as a vice, but as a really affirmative virtue up to a point -- a matter I'd love to argue with him some day, if that could be arranged. Or maybe not; he might well persuade me otherwise, and as to loafing, I'd rather keep thinking I'm right.

We should defer to him, to the extent of agreeing that this talk, and the series of lectures it begins, must try to stir something more than pleasant memory. It must do more, else he would tell us we could all better be spending our time doing other things. He would quickly suggest to us books to read, projects to begin. So I may sug­gest to you that without trying to live up to his life, still the lawyer, the legal profession, and the law schools can learn something from his life and work. Our emphasis here is on him as a jurist, but we cannot divorce his judicial work from his work as a lawyer. Some lawyers, when they become judges, are said to change. Good ex­amples are some of the conservative southern lawyers who, once on the federal bench, have worked conscientiously toward school de­segregation. One of them, kidded about this by a friend of mine, answered at least half seriously, "Strange, how life tenure brings out the liberal in a man!" Not so with LDB. He was, as lawyer and as judge, deeply concerned yet curiously detached, exhaustively careful with his facts, insistently scholarly with his law.

What can we learn from him? There are some scholars who have made careers of studying LDB. There are more who have made careers in constitutional law. I have done neither, so I will not insult you with the pretense that I have arrived at some vast new insight. What I want to emphasize has the virtue, though, of being too often forgotten. So now, together, let's remember it: A great lawyer or judge needs two broad qualities as a starter. One is craftsmanship. He must be a dedicated legal artisan, a technician who knows all the tools at a lawyer's disposal and uses them with sure skill. The second I choose to call inspiration. It is blended of parts of vision, of imagination, and of professional responsibility in its highest sense. It is the ability to work into the legal equation the oft-forgotten variables that lead to an enduring answer rather than one simply adequate for the case. The ultimate in combining these qualities is found when the inspiration of one generation be­comes the fundamental technique of another.

I suppose the most often cited example is still one of the best: The lawyers who dreamed up and developed that curious legal fiction we call the corporation built with their inspiration today's common­place. We now readily accept this legal fiction as a separate entity, indeed a "person!" So much so that when a distinguished federal district judge dared suggest that the attorney-client privilege was meant to protect individual persons only and should not be available to corporations as such, he was virtually read out of the bar.

Consider now a few examples relevant to LDB's career and also, I hope, relevant to problems the law faces today: In the school desegregation cases, counsel on both sides worked intensively to develop and present psychological and sociological data on the ef­fects of segregation and the hoped-for results of integration. Experts testified, books and reports by experts were cited. Both counsel knew the court, in deciding a constitutional question, would want and would use this kind of information. In handling the case this way, these lawyers were being competent craftsmen, indeed, but inspiration in full force was not needed. Inspiration had come near­ly fifty years before, when the brief was written and the argument made to the Supreme Court in Muller v. Oregon. That was the first "Brandeis Brief." The technique is now nearly routine, and the name for it so well understood we're nearly ready to spell it with a small "b".

Sixty years ago, though, such a brief was not yet a tool in the lawyer's kit. Had it been, perhaps Lochner v. New York would have been decided differently in 1905. That case, and cases from the highest courts of Illinois (in 1895) and New York (in 1907), held hours laws for women unconstitutional. In each of the opinions, the judges, perhaps yielding to the common judicial temptation to advance all possible arguments to support the decision, had men­tioned the lack of any showing that women were hurt by working more hours than the law allowed. Meanwhile, Oregon had passed a law setting a maximum 10-hour day for women employed in factories and laundries. A laundryman challenged the law, and it was upheld in the Supreme Court of Oregon, though no record was made of the sort of facts which would today be routinely adduced in such cases. Late in 1907, the case came to the United States Supreme Court. A remarkable organization, the National Consumers League, had spearheaded the effort which resulted in the passage of the Oregon law and others like it. The militant ladies who ran the League, led by Florence Kelley, asked Brandeis to defend the law. He agreed, and as was his custom by then in cases he considered affected with a public interest, agreed to serve with­out fee.

As one of the ladies of the Consumers League described it, LDB

... then outlined what he would need for a brief: namely, facts, published by anyone with expert knowledge of industry in its relation to women's hours of labor, such as factory in­spectors, physicians, trades unions, economists, social workers. If I could return to Boston within a fortnight with such printed matter, sufficiently authoritative to pass muster, we would then work up the material in the form of a brief.

Mrs. Kelly and I returned to New York with our work cut out for us. A fortnight to amass the necessary documen­tation -- without personnel, money, or anything but a general idea of the foreign literature on the subject and a complete skepticism as to the existence of any comparable material in American publications.

In these days of abundant tools of research, the paucity of our means seems almost laughable ... (We) and a few others ... spent a hectic fortnight as readers, translators, copyists, turning over a mounting pile of hand-written pages to a few hard-working typists.

In 1907, industrial medicine had not yet been born in the United States ...

Still, the ladies got together a great mass of information. Most of it came from Europe. Altogether, it showed the misery of excessive hours of labor, and the help that could come from regulation.

But could this kind of information be used effectively in a legal brief? No one had ever tried it. Nothing gave encouragement, ex­cept the doctrine of judicial notice, which had not been used in this way before, and the faint suggestions in unfavorable previous de­cisions that courts might be interested in this sort of data. LDB realized that his novel brief might be rejected or ignored. Still, he offered the court but a few pages of law, together with volumes of factual data arguing that hours of employment were a proper con­cern for the state's police power. As we know, the Supreme Court accepted the brief, learned from it, and unanimously sustained the Oregon law. In the next seven years, LDB participated in cases in Illinois and New York, using the same technique, and persuaded the high courts of both states to depart from their recent prior cases and this time to sustain new laws regulating women's hours of work. An inspired idea had become an accepted technique of advocacy, to be used to this day in support of the social legislation that has helped our country survive the industrial and technological revolutions with its essential character substantially preserved.

We started this example with the school desegregation cases. The inspiration needed there came not so much in Brown v. Board of Edu­cation, though there was inspired advocacy there, of course. But the greatness of the law was put to greater test when carrying out the decision "with all deliberate speed" was the job that needed do­ing. We all know by now that the South has few Louisvilles and many Little Rocks. I take it no one really envies the "Fifty-Eight Lonely Men," the federal district judges in the South who began to be asked to put the Supreme Court's words into action. The Court had said it must be done, very few Southern communities were desegregating voluntarily, so the law must find a way to force com­pliance without ripping the fabric of society apart. 

I think it fair to say that judicial ingenuity has never been called on to solve quite such a problem. The judges talked to community leaders, to newsmen, police officials, school officials. They became mediators, pleaders, cajolers. They felt their way along, trying to find plans for desegregation that would work, would comply with the Supreme Court decision, would satisfy Negro leaders, would make educational sense, and so on. Their work goes on, and will for a long time. Perhaps I am optimistic, but I think they and men of good will in the South will gradually succeed. If so, legal historians may find that new judicial techniques were shaped by hammering at the school desegregation problem, and were later used by courts in other kinds of cases.

I cannot leave school desegregation without noting that judges are not the only inspired legal craftsmen at work in that maze. The lawyers often are doing fine work, of course. But I have particularly in mind the role of law schools and legal scholars. The race rela­tions law publication at Vanderbilt bas been important. Other law teachers have written and worked on the problem. I cannot resist centering for a moment on my colleague at Wisconsin, Bill Foster, who decided to research this problem not by reading book and analyzing cases, but by going south. He talked to many of the Southern federal judges, to Negro leaders, newspaper people, every­one involved who would talk to him. Some seven years ago, when he began, he found the judges were not yet discussing desegregation problems with each other, or with community leaders. Foster is a charming man, and was able to gain the confidence of many of the participants in this drama. Sometimes he was actually instrumental in bringing the judge and community leaders together. He served, eventually, as a fund of information for the judges. A judge who was handling the school case in Jacksonville, to use a hypothetical ex­ample, might call him and ask about a desegregation plan under consideration. "No, no," Bill would say, "they tried that in Memphis and it flopped." When Martin Luther King's party desegregated a fine Atlanta restaurant, Foster was in the group. He made his reputa­tion as a prophet with me at the start of one memorable September. We were chatting at a time when I'll wager you and I both supposed that desegregation was progressing slowly and uneasily, but that real violence was unlikely. He said to me, "In a few days they're going to put James Meredith into Ole Miss, and that'll make Little Rock look like a Sunday picnic."

This kind of work by legal scholars, often called "law-in-action" research, has in recent years become a major part of the research commitment of law schools, though not all of it is as dramatic as Bill Foster's work. LDB would have approved. This kind of research is fact-oriented. It asks what the law is doing, out where it affects people's lives. It allies the lawyer with the economist, the sociologist, the statistician, in such inquiries. It makes me think of the role that LDB played in helping to build the University of Louisville, especially its Law School and its library. I refer to this hesitantly, for some of you here in Louisville know the story far better than I. But I noted especially some of his idea about what a good library should have. He enlisted his brother Alfred, who lived in Louisville, in building a Kentucky collection for the University, and wrote him.: 

... What we should now direct our attention to is not histories, biographies or the like, but the raw material out of which these are made, namely among other things:

I. The official reports and other publications of the State issued by or through the several departments and bureaus.

II. Like reports and publications of Louisville, of Jeffer­son County, and other municipalities and counties, including their ordinances, by-laws, etc.

III. Annual reports and publications of institutions, not Governmental but of a public nature. Such as educational, philanthropic, religious, and particularly such as are located in or have specific relation to Louisville.

IV. Reports and publications of businesses; particularly the Public Service Corporations and Banks -- but including also private business concerns which make annnual or other reports; also such reports and other publications of business organiza­tions like the Board of Trade.

It ls in publications of this nature, largely uncopyrighted and usually treated as being of ephemeral, if of any, value, that the real history of the Community is recorded ...

There has been, in America, in general, a failure hitherto to recognize the value of such material, or at all events, a failure to make a systematic collection of it.

Not only did LDB have the vision to see the significance of such materials as basic government documents. He also exploited his practical resources to see that the University of Louisville got the documents. In the 1920's, he used his usual discreet force to per­suade quite a few executives in government agencies that they wanted nothing more than to hunt up complete sets of the documents of their agencies for the University of Louisville Library!

Some of his own contributions of books to the library said much about the way he went at his work as lawyer and judge. Once he sent the University three large cases and one small case of books for the Department of Sociology. He wrote:

My collection was not planned as a library on sociology, nor for comprehensive study. It is merely an aggregation of units acquired in connection with specific practical tasks which I had undertaken. Some parts of the collection had already been given to others who I thought might be aided in like work.

He had more confidence in his library on railroads and railroading, which was extensive. But that, too, was only a "working" library, assembled as needed in the many railroad cases in which he partici­pated. Small wonder that one of his hallmarks as advocate and as judge was mastery of the factual context. 

Today we agree, I think, that the facts are more important than the law in most cases the court must decide. Perhaps our conduct as lawyers doesn't always reflect this awareness, for there's less glamor in digging for facts than in enunciating profound propositions of law. Still, we know how often facts are paramount. As a profession, we didn't always know it. Recall how recently the law began its work to change the lawsuit from the technical game of common-law plead­ing to an honest search after those facts genuinely in dispute. Alfred Lief, who wrote much about LDB, quotes one of LDB's associates on the Supreme Court, who referred to "the new habit which he has established in the court of making careful examination of all the factual background out of which constitutional doctrine springs."

In judging questions of constitutional law, you need not only examine the factual background as it relates to today. You must also have the vision and the learning to think what it may mean for the next generation and beyond. In his dissent in the Olmstead wire­tapping case, LDB said: 

The progress of science in furnishing the government with means of espionage ls not likely In stop with wiretapping. Ways may some day be developed by which the Government, without moving papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to the jury the most intimate occurrences of the home.

I was struck to see this prediction quoted in the December, 1964, issue of the Student Lawyer Journal, in an article discussing some of the recent techuiques and court cases involved in eavesdropping. We haven't yet reached quite the point LDB suggested -- at least, not that I know of! -- but who now doubts that we may get there? We already have cases on detactaphones, informers wired for sound, spike mikes, and the like. Tiny transistorized electronic gadgets and parabolic microphones are with us, leading to the chilling wave of advertisements that urge us to "have fun" by tuning in on the private conversations of others. The "actual physical invasion" test which LDB rejected in Olmstead is now pretty obviously out of tune with the facts. To him, it was out of tune then, too, because of his accurate vision of what the facts portended.

This matter of the wisdom to examine the ultimate consequences of a situation and the vision to forsee them truly is related to the endlessly controversial problems of just how liberal or conservative LDB actually was. My own belief is that you cannot call him either, unless you first do a pretty tortured job of defining the label. As we know, he believed in experimental social legislation, and so voted to sustain many of the laws put to constitutional test during the early depression period. Yet he also was the man who said, in memorable words, also from Olmstead, "Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent ... The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."

We think of him as pro-labor, and so he was when labor was small and weak, and many employers large and strong. I wonder if he might not feel today that the forgotten man in labor-management matters is not the worker, as then, but the consumer. Even in his day, much of the social experimenting he approved came from state government. If the word "liberal'' today means one who favors broadly increased federal government participation in our economy and polity, would it fit LDB? I doubt it, though he would, of course, be ready to consider possible federal solutions to specific problems.

He saw early the centralizing thrust in our society. In some ways, I'm sure he knew it was inevitable. All the more important, then, to set up balancing forces. Thus came his belief in the importance of state and local government, and local organizations and institutions, all to keep man tied to his fellows and his land at a level within human understanding. Any of our great universities would have been eager to have his books and papers, but they are here at the University of Louisville, because LDB felt ties, after four decades and more, to this city as his home, and also because he saw the chance here to strengthen just the sort of regional institution in which he believed.

A young college graduate from the Pacific Northwest once was bold enough to correspond with LDB about career possibilities. LDB advised staying in the home region. The young man became a news­paper writer, a good one, and soon had a chance to go with a national magazine. He wrote LDB for advice. The reply in full:

Dear Richard Neuberger:
Stay in Oregon.
Cordially, Louis D. Brandeis

Dick Neuberger did, became a famed regional writer, went into politics, became a United State Senator, died too soon, but left a remarkable wife who carries on his career. I know how pleased LDB would have been.

Look at LDB's belief in local and regional institutions, at his work as a "people's lawyer" for good causes, at much of what he said as judge. Throughout, you find an immense concern for the in­dividual man, for giving him a chance to reach full potential unfettered by the superior power or wealth of others and unfettered by govern­ment. He fought for the worker's right to be protected against ex­cess hours of labor, for the consumer's right to be protected against price and rate-fixing, for the individual's right to be protected against invasions of his private life. As lawyer, he looked at what clients wanted, and asked not only, was it legal, but also, was it right? In choosing his voluntary causes, he looked for places where the lawyer's skills might help bring social justice.

In today's highly organized, computerized, automated, deper­sonalized society, characterized by the social security number, the tax-payer number, the ten-digit phone number, and the ZIP code, how: much more do we need a class of men who will care for in­dividual man! The corporation attorney who turns out a perfect bond issue that passes every scrutiny of the SEC is a flawless craftsman and a necessary cog in the corporate machine, but he is not a great lawyer unless be asks what it all means to shareholders, to employees, and to consumers. The real estate attorney who threads his way through a conscientious title examination must be an able technician indeed. But when he fights reform in property and conveyancing law, as he too often does, on the ground that today's weird and antiquated rules are "well-settled," he demeans his profession because be keeps real estate law a mystique instead of looking for ways to have it better serve buyer and seller.

And what of the lawyer who dedicates his technical skill to resisting and obstructing the laws which are designed to advance civil rights? Men who wish to challenge these laws are clients en­titled to representation. I think none of us would criticize the lawyers who represent them and who do their best to sustain the legal position of the client. But what of the rest of the bar? I sug­gest that bar emphasis on ''law and order" in civil rights matters is not enough. To express concern about "property lights" when a fair housing law is proposed, as so many lawyers do, is myopic. A society that has subordinated property rights, when necessary, to the power of eminent domain and to the police power in the form of zoning laws and the like should see the need today. I suggest to you that lawyers especially should have the vision to see that if we do not go to work to get our Negro citizens equal citizenship and full status as individual human beings, the consequences will hurt not just the Negro, but all of us. Preservation of "property rights" will avail little, if they are preserved for an arena where racial tension and conflict devalue not only property but life itself. Law is an end­less affair of adjusting conflicting rights so society can function. To help law grow effectively, men of law need not only the techniques of the draftsman or the judge, but the inspiration to see the adjust­ment that human society needs.

This lecture series is about LDB and "the growth of American law." Whether we think of our law as a body of rules, or a process, or a profession, or an object of scholarly study, or a mystical adhesive that holds our society together, I think we all acknowledge that he contributed much to its growth. What we may tend to forget, though, is how little of what he did was universally applauded when he did it. Rather, almost all of it was highly controversial, done not in the garrison but out on the firing line. Seeing how the law needed to grow before most others saw it, he could not avoid controversy. This was true when he was a lawyer; it remained largely true when he was a judge. A superb legal craftsman he was, always, but the lasting things he did came when vision and a sense of responsibility took him to the unorthodox and often unpopular position. The human beings who are both the reason for law and the creators of law, make the law grow most when they are out on the firing line pushing for the frontier.

I think you know how deep was LDB' s feeling for this city of Louisville, this University, and this law school. None of us here, I suppose, will or can spend the time on the firing line that he did. But if your look over the coming years at his contributions can in­spire as well as inform, if it can help move this school and the law people here to venture now and then into the exciting world beyond orthodoxy, then this lecture series will truly do him the honor I know you intend. You have honored me by letting me share with you some thoughts of mine about the vision he had for all of us in the law. For me, with all its faults, the law is the finest profession, and the vital keystone of society's arch. As society grows, so must the law, with our help.

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