Louis Brandeis didn’t become one of the greatest Supreme Court justices ever without a dogfight. The bitter battle over the Brandeis nomination to the high court in 1916 exposed a virulent strain of anti-Semitism among Boston’s elite.
But it was really his support of ordinary people against concentrated wealth that made the fight over Louis Brandeis’ nomination the most contentious in U.S. history.
Not until the nomination of Robert Bork 71 years later would the Senate engage in such furious debate.
Brandeis believed the law should reflect social change and the real concerns of the world. The courts didn’t exist just to defend property rights, he thought.
His adversaries fought him tooth and nail. Over four months, witnesses, pundits, reporters, opponents and supporters joined the standing-room-only crowd in the Senate chamber during the nomination fight. His opponents feared he would bring his radical new ideas to the court.
They had good reason.
The Brandeis Nomination
President Woodrow Wilson, like Louis Brandeis, distrusted corporate bigness. He was the strongest supporter of antitrust laws among the three men who ran for president in 1912—himself, Theodore Roosevelt and President William Howard Taft.
Brandeis, a prominent Boston attorney known as the “People’s Lawyer,” supported Wilson for president. Brandeis had led public fights to improve workers’ safety, curb corporate power, break up railroad monopolies and expose insurance fraud. His campaign on behalf of Wilson took some of the progressive vote from Roosevelt and helped usher Wilson into the White House.
Several years later, as Wilson looked toward reelection, he needed to shore up his progressive credentials. So when Justice Joseph Lamar died in January 1916, Wilson nominated Louis Brandeis, 59, to the Supreme Court.
“I am not exactly sure that I am to be congratulated,” Brandeis wrote his brother. He probably had an inkling of the swift and furious response his nomination would inspire.
Brahmins in Arms
In 1890, with a reputation as a brilliant and promising young corporate lawyer, Brandeis had accepted an invitation to spend a weekend at the summer home of Brahmin financier Henry Lee Higginson. A year later, Mrs. Higginson was the first to visit Brandeis’ wife, Alice, on her return from their honeymoon.
But Higginson changed his views about Louis Brandeis after he fought J.P. Morgan’s effort to monopolize New England’s railroads. In 1916, Higginson from behind the scenes financed the battle against the Brandeis nomination to the Supreme Court.
The Wall Street Journal denounced Brandeis as “super-extreme” and “rabid.” The Los Angeles Times called him a “dangerous demagogue.”
Harvard President Abbott Lawrence Lowell, an open anti-Semite, circulated a petition to oppose the Brandeis nomination. Fifty-five influential people signed it with Brahmin last names like Gardner, Peabody and Adams, as in Charles Francis. Seven of the 16 presidents of the American Bar Association signed a letter that called Brandeis unfit.
Former President Taft called the Brandeis nomination “one of the deepest wounds” he had ever suffered as an American. He called Brandeis a muckraker, an emotionalist, a socialist, a hypocrite, utterly unscrupulous, a man of “infinite cunning” who had “much power for evil.”
Later, as chief justice of the Supreme Court, Taft came to like and respect Louis Brandeis.
It took four months of charges and countercharges for Brandeis to win the nomination. He did not defend himself personally–not the custom of the time. His enemies excoriated him.
His opponents charged him with unethical behavior. One detractor accused him of breach of faith as counsel to the Interstate Commerce Commission because he supported a big rate increase for the railroads. His defenders took the witness stand to say he’d done no such thing.
Another witness, Clarence Barron, called himself a farmer and testified to Brandeis’ unfitness for the high court. Barron, a journalist, had actually attacked Brandeis during his fight against Morgan’s attempted railroad takeover.
The Rev. A.A. Berle testified that Boston’s Brahmins had enjoyed such total control of Massachusetts for so long they believed anyone who disagreed with them is “ipso facto a person who is either ‘dangerous’ or lacking in ‘judicial temperament’.”
Or as Justice William O. Douglas later put it,
… the fears of the Establishment were greater because Brandeis was the first Jew to be named to the Court.
Ironically, Brandeis did not actively practice his religion. He did not belong to a synagogue, he celebrated Christmas and he enjoyed ham.
Brandeis had graduated from Harvard with a goal of making a lot of money as a lawyer so he could devote his time and energy to progressive reforms.
He and his college friend Samuel Warren formed a law firm, now Nutter, McClellen & Fish. Warren married a wealthy anti-Semite who refused to invite Brandeis to their wedding, despite their friendship and business ties.
But Brandeis didn’t complain of anti-Semitism before, during or after his nomination battle, according to his biographer, Melvin Urofsky. He probably understood the unsettling nature of his challenge to the settled thinking of the conservative Establishment.
On June 1, 1916, his appointment to the U.S. Supreme Court was official. He then sat on the court for 23 years. As his opponents had feared, he changed the direction of the high court.
Impact on the Court
Brandeis interpreted the Constitution to guarantee the right to privacy, which he described as “the right to be left alone.” He created the Brandeis brief, legal arguments that depend on facts and figures from the real world, not just legal principles. Civil rights lawyers used Brandeis briefs to argue and win the landmark Brown v. Board of Education case that ended legal school desegregation.
Louis Brandeis sat on the court for 23 years. He did not change his mind about the threat posed by corporate monopoly. In 1933, his friend and confidante Edward Keating quoted him saying,
We can have democracy, or we can have great wealth concentrated in the hands of a few, but we can’t have both.
With thanks to Louis D. Brandeis: A Life by Melvin Urofsky. This story updated in 2022.