Brandeis, revered or hated, a Giant

Brandeis was not shy about discussing the role law can play in shaping society. Not for him the self-effacing metaphors of recent confirmation hearings. Brandeis would have scoffed at Chief Justice John G. Roberts Jr. as an umpire in robes calling legal balls and strikes, and Justice Sonia Sotomayor as a law robot mechanically applying statutes and precedents to facts.

Scoff. Ditto.

Brandeis thought the law an instrument of morality and progress. “Is not the challenge of legal justice to conform to our contemporary notions of social justice?” he asked in a speech just weeks before President Wilson nominated him to the court. It is all but impossible to imagine the nomination of a lawyer like Brandeis today, and it is a small miracle that he was confirmed even in his day. As was the custom at the time, Brandeis did not testify. But the confirmation hearings were brutal nonetheless.

No, brutality is not a modern political phenomenon, at all.

The president of Harvard University, where Brandeis had gone to law school, opposed the nomination; so did seven past presidents of the American Bar Association. William Howard Taft, the former president and future chief justice, called him “utterly unscrupulous” and “a man of infinite cunning.”

Members of the Supreme Court of the United States shows Taft as Chief Justice 1921-1930. He'd been President 1909-1913.

Brandeis was the first Jewish justice, and Taft’s comment at least flirts with anti-Semitism. But Mr. Urofsky generally plays down the role anti-Semitism played in the hearings, where the subject of Brandeis’s religion arose only once, and in Brandeis’s career generally. It was Brandeis’s perceived radical beliefs and hostility to business interests that provoked his enemies, Mr. Urofsky concludes; being Jewish was “a complicating factor.”

Brandeis was confirmed by a vote of 47 to 22.

Brandeis is often paired with Justice Oliver Wendell Holmes Jr., his frequent ally in dissent on a generally conservative court. But they arrived at similar positions by very different routes. Holmes liked abstractions and gnomic epigrams; Brandeis cherished detailed information.

“No justice of the 20th century had a greater impact on American constitutional jurisprudence,” Mr. Urofsky writes. That is a large statement but probably correct, and the author certainly makes a vigorous case for it.

Take the law of privacy. In his 1928 dissent in Olmstead v. United States, Brandeis objected to warrantless wiretapping by the government and set down some lasting principles. “The greatest dangers to liberty,” he wrote, “lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

A certain recent vice-president comes to mind.

Brandeis told Frankfurter that he construed the Constitution liberally where property rights were involved, meaning he seldom voted to strike down laws regulating them, but that laws restricting individual rights required closer scrutiny.

He explained why in a 1927 concurrence to a Court decision that would help transform First Amendment law. “Those who won our independence by revolution were not cowards,” Brandeis wrote. “They did not fear political change. They did not exalt order at the cost of liberty.”