September 2014: Supreme Court Justice Louis D. Brandeis's law school notebook, 1877
- Object No.: 2014.06.01
- Donor: Frank Gilbert
Louis D. Brandeis (1856-1941) used this notebook during his final semester as a law student. Nearly four decades later, he became the first Jew appointed to the Supreme Court.
Born in Louisville, Brandeis cultivated a love of law and legal debate under the strong influence of his uncle Lewis Dembitz, a scholarly lawyer. He attended Harvard Law School (1875-1877) where he achieved the highest grade point average in the school's history — a record that stood for over 80 years — and graduated before his 21st birthday. At Harvard, Brandeis had reveled in the “almost ridiculous pleasure which the discovery or invention of a legal theory gives me.”
In 1907, Brandeis put that creativity to use in a case involving the constitutionality of limiting the hours that female laundry employees could be asked to work. His sister-in-law, Josephine Goldmark, worked for the National Consumers League in New York City, and provided Brandeis with data on the workers. He combined this information with data from medical and sociological journals that showed that working too many hours was detrimental to the women's health. Brandeis used this information to supplement his legal reasoning and argument. Brandeis won the case (Muller v. Oregon). His unprecedented use of extra-legal information before the Supreme Court quickly became routine and such arguments became known as a “Brandeis brief.”
Brandeis was attracted to "the ethic, or prophetic standards of Judaism," as biographer Melvin Urofsky explains.1 Brandeis contributed to Jewish philanthropies, and his advocacy for workers led him to support causes of great importance for millions of Jewish immigrants. As a mediator for a garment workers strike in 1911, Brandeis felt a kinship with the mostly Jewish immigrants on both sides. This sentiment stoked a sense within Brandeis that Jews and Judaism could only survive and grow with the establishment of a Jewish homeland. In 1914, he became President of the Zionist Organization of America, and, for years after, one of American Zionism’s leading intellectual forces. His close relationship with President Woodrow Wilson, who trusted Brandeis’s counsel and intellect, was instrumental in winning U.S. support for the Balfour Declaration, the British government’s expression of support for a Jewish homeland in Palestine.
President Wilson Nominates Brandeis to the Supreme Court
That Brandeis had argued on behalf of the workers against corporate interests was expected. He was such a defender of the rights of labor and consumers that he became known as the "People's Attorney." According to Melvin Urofsky's acclaimed biography, Louis D. Brandeis: A Life, Woodrow Wilson had considered asking Brandeis to be his Attorney General shortly after his election in 1912. Ultimately, the new president was dissuaded by his advisors because of concerns about the reaction of the business community.
So when President Woodrow Wilson nominated Brandeis to the Supreme Court on January 28, 1916, the opposition was heated because of both the nominee's progressive politics and his religion. The confirmation battle raged for four months. Brandeis' nomination was the first that included a public hearing. Former President — and future Chief Justice — William Howard Taft opposed Brandeis as did former Secretary of State Elihu Root, and seven of the 16 former presidents of the American Bar Association. Taft referred to Brandeis as "a muckraker … a man who has certain high ideals in his imagination, but who is utterly unscrupulous."
Various business leaders veiled their antisemitism with such phrases as "a self-advertiser" and "a disturbing element in any gentleman's club." Harvard President A. Lawrence Lowell signed a petition which said Brandeis lacked “judicial temperament." Still, some opposition referenced Brandeis's Jewish background, but did not necessarily emerge from antisemitic perspective. The New York Times, owned by a Jewish family, argued against Brandeis on the basis of his Zionism.
Early during the fight over his nomination, Brandeis wrote to his friend, Harvard Law School Dean Roscoe Pound, "I doubted very much whether I ought to accept, but the opposition has removed my doubts."
After months of unprecedented debate that included veiled antisemitic accusations, public letters from President Wilson and former Harvard President Charles W. Eliot, who had known Brandeis for more than 40 years, carried the day. It was an election year and conservative Southern Democrats ultimately supported their President. On June 1, the nomination was approved by a 47-22 margin. Only one Democrat, Nevada's Francis Newlands, voted against Brandeis.
Brandeis on the Court
If Taft and Brandeis were uncomfortable serving together on the Court from 1921 to 1930, imagine how the latter felt during his 23 years on the bench alongside Justice James McReynolds, who expressed his antisemitic feelings boldly: he would leave the conference room when Brandeis began speaking and would not return until the more junior justice was finished.
However, by the time Brandeis retired from the Court in 1939, his wise service had changed the minds of many of his detractors. The Times, which, in 1916, accused Brandeis of seeking "to supplant conservatism by radicalism," termed him "one of the great judges of our time." The paper praised him for treating the Constitution, "as no iron straightjacket, but a garment that must fit each generation."
The Notebook's Significance
In 1915, the year before his appointment to the Court, Brandeis gave this notebook to his daughter Susan Gilbert (née Brandeis) when she entered University of Chicago Law School. Like her father, Gilbert faced discrimination, but hers was not just because of her religion, but also her gender. Nevertheless, she went on to a distinguished legal career, first as a special assistant to the United States attorney in New York City, and later in private practice. When she argued a case before the Court in 1925, her father recused himself.
It was Susan's son, Frank, a past JHSGW President, who recently donated this notebook to the Society's collection. In 2003, Gilbert wrote a reminiscence about his grandfather for the Society's journal, The Record. Gilbert described the warmth and intellectual stimulation that he felt visiting his grandfather's apartment on California Street, NW, as well as his grandparents' home in Chatham, Massachusetts. Gilbert wrote, "Although we were very young, Grandfather treated us as persons who had minds."
The Society recently completed an oral history interview with Gilbert, who is among the leading figures in the field of historic preservation. Among his many achievements, Gilbert is known for his leadership in the effort to rescue New York's Grand Central Station from demolition.
1. Melvin Urofsky, Louis D. Brandeis: A Life (New York: Schocken Books, 2012) pp. 18-19, 401.