The Lasting Impact of Louis D. Brandeis


There have been many summations of Brandeis’s philosophy over the years, but there is always room for new looks at his life’s work. The latest overview is an article by Joel K. Goldstein and Charles A. Miller called “Brandeis: The Legacy of a Justice” (100 Marquette Law Review 461-495).

Their article actually comes out of research they have done on former Brandeis law clerk, Paul Freund. Taking Freund’s comment that Brandeis was “the most most moral teacher ever to have sat on our highest court” as their starting point, they look at Brandeis’s discretionary opinions and the impact they have had on the Supreme Court and US presidents in the years after his death.

In describing the moral center of Brandeis’s judicial philosophy, they divide his dissents and concurrences into five threads: the rights of the individual, the duties of citizenship vs. the infringement of rights, bigness in both business and government, the inappropriate use of government power, and the necessity of government regulation. (They make the interesting point that with the exception of Ashwander, almost none of Brandeis’s majority opinions have had much historical impact.)  After describing how Brandeis’s opinions support these threads of his thought, they go on to show how they have influenced later Supreme Court justices on both sides of the political spectrum.

People looking for a concise introduction to Brandeis’s Supreme Court legacy, or for examples of how morality can shape American jurisprudence are encouraged to read this excellent article.


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