This week on Nov. 13 marked the 166th birthday of our university’s namesake Justice Louis D. Brandeis. Many students may not know the impact of the man whose statue they put orange cones on top of, so to celebrate the big 1-6-6 we want to honor the life and legacy of our namesake.
Brandeis—the person, not the university—is arguably most famous for having been the first Jewish person elected to the Supreme Court. In a history-making appointment, Brandeis continued his trailblazing in a number of court decisions. But Brandeis’ legacy and impact began earlier than his career sitting on the Supreme Court.
He had attended Harvard Law School, where he not only graduated at the top of his class but with record-breaking marks. After graduating, Brandeis took up many court cases representing small companies against larger corporations. He also took an interest in fighting for minimum wage for workers in larger corporations who were being denied fair pay for their labor. Brandeis also received acclaim for an essay he published with his practice partner Samuel Warren. Together the two outlined the “right to privacy” in a 1890 Harvard Law Review article.
The essay published by Brandeis and Warren is considered “one of the most influential essays in the history of American law.” The essay describes the fundamental idea that “the individual shall have full protection in person and in property.” Essentially the article puts forward the idea that the concept of property—and consequently one’s own right to it—is not just in regards to tangible items but also in reference to intangible ones as well. In doing so, Brandeis and Warren delved into the legal protections around libel and slander and what protections people are entitled to.
At this point in his career, Brandeis had managed to become involved in many public interest cases causing him to be dubbed the name “the people’s lawyer.” A huge win in his career came from his case Muller v. Oregon (1908) that went before the Supreme Court, where Brandeis had been asked to represent the state of Oregon as the defendant in error.
The case had been raised by Muller who had been fined for making a female worker work more than 10 hours in one day. At this time, the legislature of Oregon passed an act that said, “That no female (shall) be employed in any mechanical establishment, or factory, or laundry in this state more than ten hours during any one day.” Muller was in violation of this legislature but fought the violation by saying it broke the 14th Amendment because it did not allow women to have agency over whether they would like to work more than 10 hours a week. The plaintiff argued that, “It is the law of Oregon that women, whether married or single, have equal contractual and personal rights with men.” By limiting the hours a woman can choose to work it is in direct violation of granting women equal status to their male counterparts. The defense’s argument was that the legislation was designed to protect women on account of their sex.
There are a lot of problems with the language of this court case, regarding gender and women’s roles. When reading through the document it is a bit discouraging to think that Brandeis supported this argument that blatantly makes women out to be inferior to their male counterparts, though, I think it is important to take note of the time period this is set in. But it is disheartening to read that Brandeis won the argument on the basis that “women needed ‘special protection’ by virtue of their physical differences from men.”
While this case was won on the terms that women needed protecting on account of their sex to maintain their “unique qualities and societal role,” it also set a precedent which helped pass many labor laws including worker pay, work hours and work conditions. This case also played a large role in eventually making overtime pay into law. Eventually the laws would be expanded to not just protect women but men as well, but it takes time for the world to catch up on their societal expectations on the basis of sex.
The case was a huge win for Brandeis; the overall takeaway from the court win was that the decision would protect the health and welfare of women. However, it did also have some detrimental consequences because it did lead to inequality in the workplace for years to come because of the assumption that women are lesser than men established in this ruling. This case also has other important takeaways because it was the first time there was the use of what is now known as a “Brandeis Brief.”
A “Brandeis Brief” is a legal court filing still used to this day, that relies more heavily on the compilation of scientific information and social science in comparison to legal citations. For this case, Brandeis outlined a 113-page brief that outlined “quasiscientific data on the negative effects of long working hours for both men and women.” It is important to note here that Brandeis found long working hours had detrimental effects on both men and women but women needed the extra protection because of their “biological reproductive roles.” Again, not a great argument to win on, but this case set an important precedent for the future of worker rights in the U.S.
It wasn’t until 1916 that Brandeis received his nomination to the Supreme Court by then president Woodrow Wilson. He received the nomination on Jan. 28, 1916 and he was the first nominee to not be confirmed on the day of their nomination. Brandeis’ appointment to the Supreme Court was the first to be brought to a public hearing in the Senate. It wound up taking four months of Senate Judiciary Committee hearings to bring the nomination to a vote in the Senate. The Senate was in support of Brandeis’ nomination 47-22 and he was officially confirmed to the position on June 1, 1916.
There was controversy over Brandeis assuming the position because of his career of opposing monopolies, criticizing investment banks and advocating for workers’ rights. His ideas made people view him as a radical and therefore caused concern that he may lack “judicial temperament.” In addition to these radical ideas and values, there was an underlying issue taken with his religion. Brandeis believed there was hesitation regarding his appointment because of his religion and antisemitic beliefs in the Senate.
As a justice on the Supreme Court, Brandeis continued supporting what were considered “radical ideas.” Notably in Gilbert v. Minnesota (1920) Brandeis wrote a dissenting opinion after the Supreme Court ruled in favor of upholding the conviction of Joseph Gilbert for criticizing U.S. participation in World War I. Gilbert had been arrested for anti-conscription speech, and Brandeis dissented with the argument “that the Minnesota law outlawed beliefs, not just actions, and that it would invade the private security of the family if it prevented a father from advising his son not to join the army for reasons of conscience or religion. He added that the statute deprived persons of rights guaranteed by the Constitution.”
Brandeis had a record of protecting freedom of speech rights during his time on the Supreme Court. Was the man perfect? No. But are any of us truly perfect? At the end of the day, Brandeis did a lot to protect the rights of people and as a social justice school we could only hope to uphold the same values that he did to fight for social justice and leave the world in a better place than we received it.