On January 28, 1916, President Woodrow Wilson nominated the successful Boston attorney Louis Brandeis to the Supreme Court. Although Brandeis is a mostly revered figure today, his battle to get a seat at the Court was ugly and hard-fought.
By 1916, Brandeis had become one of the most prominent attorneys in the country and a trusted Wilson ally. It was Brandies who came up with the “Brandeis Brief,” a Supreme Court argument still used today that evaluates cases using expert testimony including economic and social evidence, as well as legal precedents.
In 1907, Brandeis agreed to represent Florence Kelley and Josephine Goldmark (his sister-in-law) in a case about the constitutionality of limiting labor hours for female laundry workers. He won his case in front of the Supreme Court by citing non-legal data in a 113-page brief.
Nine years later, Brandeis accepted Wilson’s nomination to the Court, knowing it would be a difficult fight. Not only was Brandeis associated with Wilson’s progressive beliefs that public policy shouldn’t be driven by “big business,” Brandeis was also Jewish in an era when that fact alone could marshal considerable opposition to his nomination to the Supreme Court.
“First, he was the first Jew ever to be nominated for the court, and there was blatant anti-Semitism there,” historian and professor Lucas Powe told NPR in a 2009 interview. Powe also said that Brandeis’ decision to shift from a lawyer who defended businesses to one who fought against them caused concerns on Wall Street.
The Wall Street Journal and New York Times led the press opposition to Brandeis, calling him a “radical.” Among the Republicans who opposed his nomination were Taft, Henry Cabot Lodge and Elihu Root. Taft called the Brandeis nomination “an evil and a disgrace.” Six former presidents of the American Bar Association also opposed Brandeis.
In response to the outcry, the Senate held the first-ever Judiciary Hearing on a Supreme Court nomination.
During the nomination fight, Brandies wrote his friend, the legal scholar and Harvard Law School dean, Roscoe Pound, about the uproar over his nomination.
“I doubted very much whether I ought to accept, but the opposition has removed my doubts,” Brandeis said in February 1916.
The nomination process took four months, and while Brandeis wasn’t required to attend the hearings, it set a precedent. In the end, the Senate approved Brandeis by a 47 to 22 vote.
Brandeis stayed on the court from June 5, 1916, until his retirement on February 13, 1939.
In May 1916, the New York Times issued a stinging editorial about the impending confirmation of Brandeis.
“The Supreme Court, by its very nature, must be a conservative body; it is the conservator of our institutions, it protects the people against the errors of their legislative servants, it is the defender of the Constitution itself. To place upon the Supreme Bench judges who hold a different view of the function of the court, to supplant conservatism by radicalism, would be to undo the work of John Marshall and strip the Constitution of its defenses,” it said.
But upon Brandeis’ retirement in 1939, the Times did an about-face on Brandeis.
“The retirement of Justice Brandeis takes from the bench of the Supreme Court one of the great judges of our times,” it said, lauding Brandeis as a Justice who “has regarded the Constitution as no iron straitjacket, but a garment that must fit each generation.”