The Brief against Brandeis (reprise)

There is no denying that the long-lived Louis D. Brandeis (1856-1941) was an American treasure. The son of Eastern European Jewish immigrants, he graduated at age 20 with the highest GPA in the history of Harvard Law School. He made his reputation as a Progressive lawyer and as a leader of the worldwide Zionist movement. In 1916, he was nominated for a seat on the United States Supreme Court by President Woodrow Wilson.

The definitive biography of Justice Brandeis was published by Pantheon in 2009. The work of Melvin I. Urofsky of Virginia Commonwealth University, the 955-page tome received rave reviews. One, written by Anthony Lewis, appeared in The New York Review of Books. Brandeis, according to Lewis,

was intensely interested in facts. His law clerks did research on facts as much as law. When the Court considered a case on presidential appointment power that involved the 1867 Tenure of Office Act, Brandeis had his law clerk, James M. Landis (who became the dean of Harvard Law School), go over the Senate journals of 1867 to see what the views of the times were. Landis spent months in the Library of Congress reading the journals page by page.

Brandeis even tried to get Justice Holmes, who read philosophy in the original Greek, to take more interest in facts. He urged Holmes to spend the summer break reading up on working conditions and visiting the textile mills in Lawrence, Massachusetts. A year later Holmes wrote Harold Laski that “in consideration of my age and moral infirmities, [Brandeis] absolved me from facts for the vacation and allowed me my customary sport with ideas.”

Brandeis’s obsession with facts continues to reverberate through American law and politics. Consider, for example, what Wikipedia has to say about the term “Brandeis brief,” which refers to

a pioneering legal brief that was the first in United States legal history to rely not on pure legal theory, but also on analysis of factual data. It is named after the litigator Louis Brandeis, who collected empirical data from hundreds of sources in the 1908 case Muller v. Oregon. The Brandeis Brief changed the direction of the Supreme Court and of U.S. law. The Brandeis Brief became the model for future Supreme Court presentations in cases affecting the health or welfare of classes of individuals. This model was later successfully used in Brown v. Board of Education to demonstrate the harmful psychological effects of segregated education on African-American children.

This week members of the Spring 2013 class of Glenn Fellows are reading essays and court cases organized around the theme of fact-finding and its jurisprudential consequences. As they read these materials, my hope is that they will perform a little thought experiment by asking themselves about the facts that the Court recognized in Muller, Brown, and Roe v. Wade, and whether it would have been wiser for the Court to base its rulings on strictly legal grounds, rather than conducting fact-finding expeditions.

In Brown, for example, the Supreme Court had the option of resurrecting Justice Harlan’s stirring dissent in Plessy v. Ferguson, which would have meant striking down school segregation on the grounds that “our constitution is color-blind,” rather than on the less substantial grounds that segregated schools inflict psychological damage upon African-American children. Likewise, in Roe v. Wade, there were a number of precedents that the Court, rather than wrestling with the question of fetal viability and formulating a national “right of privacy,” might have used to finesse the issue of abortion by declaring that public health is a matter that the Constitution, through the Tenth Amendment, reserves to the states. I hope the Fellows will ask themselves, in short, whether the Brandeis brief, so well intentioned, has been responsible for a great deal of legal and political mischief in the century since Muller v. Oregon.

October 8, 2012 update: It turns out that this could be a big week for affirmative action. Oral arguments are scheduled for Wednesday in Fisher v. University of Texas, a case filed by a white woman who claims to have been a victim of racial discrimination when she was rejected for admission to the university. According to Robert Barnes in the Washington Post, the case has elicited 92 amicus curiae briefs. It also has inspired an op-ed piece in Sunday's Post co-authored by the law school deans at both Harvard and Yale. Ready to hear the case against affirmative action? Tomorrow is the publication date for a book by Richard Sander and Stuart Taylor, Jr., called Mismatch, which is attracting rave reviews mainly, but not exclusively, from the right.