Louis Brandeis

The trite phrase applies – this is a tapestry of the time of Louis Brandeis. It is well worth the time both for the insights it delivers and for the historical perspective. I was familiar with Brandeis in a supporting role in reading I did on Oliver Wendell Holmes, for his quotation that the states are the laboratories of democracy and for his role in the sick chicken (Schechter) case that put the brakes on some of the more radical new deal overreaches. There is a lot more. I have broken these notes into sections of things I learned.

Jewish in America a century ago
Brandeis was the son of Jewish-German immigrants. He was very aware of being Jewish, but his culture was also heavily German, and he was proudly an assimilated Jew. The events of the Holocaust have forever changed how we view history, but we should probably consider history as it was seen at the time. The German-American Jews were not always enthusiastic about the arrival of Russian Jews, who were culturally different. During WWI, before the USA got into the conflict, American Jews were generally in favor of the Central Powers. The German origin Jews shared cultural affinity with Germany. The Russian origin Jews considered the Russian Czar the bigger enemy.

Of course, there was also no Israel in those days and no Palestine. Brandeis became an active Zionist, and evidently just did not see it as a challenge is Jews moved to Palestine. He seemed to think that the local Arabs would welcome the new settlers, as they would improve the local economy. Recall that there had never been an independent Palestine. Before WWI, Palestine was part of the Ottoman Empire and it became a British mandate. Zionist intended that the Jewish homeland be part of the Ottoman Empire and later as part of the British mandate.

The book goes into some detail about Zionism.

Scientific management
The early 20th Century was a time of great confidence in science and engineering, even in places where it did not really apply. Scientific management was developed by practice and theory at that time. The most famous proponent of scientific management was Fredrick Taylor. Historians and business students still learn about scientific management (sometimes called Taylorism and even Fordism, after Henry Ford). The idea was to apply engineering principle to production, and it was effective as far as it went, but it did not account for humanity. It treated people like machines or parts or machines and was a machine age ideology. Today we tend to associate it with the unpleasant conformity.
Brandeis embraced scientific management and applied it in his law practice and his work as a judge. He figured out, for example, the firms like railroads could run more efficiently and so pay workers more or cut fares. He really did not understand the business, but it seemed logical and science. This sort of arrogance was characteristic of progressive ideas on management of the economy. It is easy to criticize them now, but at the time it seemed to make sense. This was, after all, a machine age and so much seemed to be made better by scientific analysis. It is like the adolescent who discovers some of the rules of life and thinks they can be applied universally. Assembly lines worked. They just were not pleasant places to work and just expanding them to society was not sustainable.

Conservation and the environment
The early 20th Century was an origin time, a kind of heroic age of conservation, with heroes like Theodore Roosevelt and Gifford Pinchot. As in the earlier theme, it was also still part of the machine age and most people thought in terms of production. The science of ecology was not well developed, and the dominant ideas were of a top-down management or exclusion. Brandeis was not much into this debate, but he did get involved in a major conservation case – Pinchot v Ballinger. I was unaware of this. Brandeis was not much interesting in the conservation aspect, but it was subsequently seen as a conflict between use and conservation aspect of the movement.

Free speech
Back in Brandeis’ day, progressives were the ones fighting for free speech. Most of the cases in those days were against leftist and/or related to censorship during World War I. Brandeis and Holmes went with the “clear and present danger” criteria, i.e. speech should be free unless it met that criteria, narrowly defined. It was later to be modified to make speech even less restrictive. It is only recently that progressives have turned on the concept. Holmes and Brandeis believed that even “wrong” speech should be protected, since it helped find the right.

Personal life
There was fair amount about Brandeis’ personality. He was evidently very detail oriented, always checking the facts and the background. He complemented well his friend and colleague Oliver Wendell Holmes. Holmes was interested in the broader context and had little desire for the details. Holmes was a superb writer and could well put his idea out. That is one reason we remember him better. Holmes also drew on a wide variety of sources. He sometimes quoted poetry in his decisions and read Greek classics in the original.
Brandeis was rich, but he always lived simply. He explained that it didn’t matter how much you earned but how much you spent and went on that when he was young and relatively poorer, he decided to live simply. He just kept it up as he got richer. He bought expensive suits, because they lasted longer, but he did not buy many. And when he replaced them, he just got the new version of the same one he had.

The Brandeis often entertained at home and these were stunning intellectual affairs. Brandeis would talk about anything except cases he might decide. The attraction was the thought, not the food. People commented that they went away hungry. The food was good quality but there was not much.

Life & times
This is a good life and times book about a man who lived a long life in interesting times.1