Discussion:Louis Brandeis

Mise en réserve

Les cas majeurs

Gilbert v. Minnesota (1920)- Whitney v. California (1927)- Liberté d'expression

There was a strong conservative streak in the U.S. beginning with World War I and into the 1920s, and this conservatism was reflected by decisions of the Supreme Court. In clear contrast to many of the Court's positions, however, both Brandeis and Justice Oliver Wendell Holmes often took the dissenting position and became noted for consistently challenging the majority's view. These dissensions were most clear in cases dealing with the free speech rights of defendants during the military draft, leading to Justice Holmes developing the concept of "clear and present danger" as a condition before a violation would be declared and both Holmes and Brandeis using this doctrine in other cases. According to historian John Vile, Brandeis was "spurred by his appreciation for democracy, education, and the value of free speech and continued to argue vigorously for . . . free speech even in wartime because of its educational value and the importance to democracy." And according to legal historian John Raeburn Green, Brandeis's philosophy influenced Justice Holmes himself, and writes that "Justice Holmes' conversion to a profound attachment to freedom of expression . . . may be taken to have occurred in 1919, and to have coincided roughly with the advent of Mr. Justice Brandeis's influence."

One such case was Gilbert v. Minnesota (1920) which dealt with a state law prohibiting any interference with the military's enlistment efforts. In his dissenting opinion, Brandeis wrote that the statute affected the "rights, privileges, and immunities of one who is a citizen of the United States; and it deprives him of an important part of his liberty. . . the statute invades the privacy and freedom of the home. Father and mother may not follow the promptings of religious belief, of conscience or of conviction, and teach son or daughter the doctrine of pacifism. If they do, any police officer may summarily arrest them."

The case of Whitney v. California is notable partly because of the concurring opinion of both Justices Brandeis and Holmes. The case dealt with the prosecution of a woman for aiding the Communist Labor Party, an organization that was promoting the violent overthrow of the government. In their opinion and test to uphold the conviction, they expanded the definition of "clear and present danger" to include the condition that the "evil apprehended is so imminent that it may befall before there is opportunity for full discussion." According to legal historian Anthony Lewis, scholars have lauded Brandeis's opinion "as perhaps the greatest defense of freedom of speech ever written by a member of the high court." In their concurring opinion, they wrote:

"Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of free speech to free men from bondage of irrational fears. . . Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. . . "

Olmstead v. United States (1928) - Le droit à la vie privée

In his widely cited dissenting opinion in Olmstead v. United States (1928), Brandeis relied on thoughts he developed in his Harvard Law Review article in 1890. But in his dissent, he now changed the focus whereby he urged making personal privacy matters more relevant to constitutional law, going so far as saying "the government [was] identified . . . as a potential privacy invader." At issue in Olmstead was the use of wiretap technology to gather evidence. Referring to this "dirty business," he then tried to combine the notions of civil privacy and the "right to be left alone" with the right offered by the Fourth Amendment which disallowed unreasonable search and seizure. Brandeis wrote in his lengthy dissent:

"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred against the government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men."

In succeeding years his right of privacy concepts gained powerful disciples who relied on his dissenting opinion: Justice Frank Murphy, in 1942, used his Harvard Law Review article in writing an opinion for the Court; a few years later, Justice Felix Frankfurter referred to the Fourth Amendment as the "protection of the right to be let alone," as in the 1947 case of Harris v. U.S., where his opinion wove together the speeches of James Otis, James Madison, John Adams, and Brandeis's Olmstead opinion, proclaiming the right of privacy as "second to none in the Bill of Rights

Durant le New Deal

Avec Benjamin Cardozo et Harlan Fiske Stone, Brandeis appartenait à l'aile libérale de la cours suprême (les trois mousquetaires) qui s'opposait aux quatre conservateurs appelés les "Horsemen"

Louisville v. Radford (1935) - limiting presidential discretion

According to John Vile, in the final years of his career, like the rest of the Court, he "initially combated the New Deal of Franklin D. Roosevelt, which went against everything Brandeis had ever preached in opposition to the concepts of 'bigness' and 'centralization' in the federal government and the need to return to the states." In one case, Louisville v. Radford, he spoke for a unanimous court when he declared the Frazier-Lemke Act unconstitutional. The act prevented mortgage-holding banks from foreclosing on their property for five years and forced struggling farmers to continue paying based on a court-ordered schedule. "The Fifth Amendment," he declared, "commands that however great the Nation's need, private property shall not be thus taken over without just compensation."

In another case, Schechter Brothers v. The United States (1935), the Court also voted unanimously to declare the National Industrial Recovery Act (NIRA) unconstitutional on the grounds that it gave the president "unfettered discretion" to make whatever laws he thought were needed for economic recovery. Economics author John Steele Gordon writes that the National Recovery Administration (NRA) was "the first iteration of Roosevelt's New Deal . . . essentially a government-run cartel to fix prices and divide markets. . . This was the most radical shift in the relation between government and the private economy in American history."

Brandeis also opposed Roosevelt's court-packing scheme of 1937, which proposed to add one additional justice to the Supreme Court for every sitting member who had reached the age of seventy without retiring. "This was," felt Brandeis and others on the Court, a "thinly veiled attempt to change the decisions of the Court by adding new members who were supporters of the New Deal," and according to historian Nelson Dawson, "Brandeis . . . was not alone in thinking that Roosevelt's scheme threatened the integrity of the institution."

Erie Railroad Co. v. Tompkins (1938) - Loi fédérale versus loi des Etats

His last important judicial opinion was also one of the most significant of his career, according to Klebanow and Jonas. The case dealt with the issue of whether federal judges are free to pass judgment based on "general law" where the parties to a lawsuit are from different states. Speaking for the Court, Brandeis overruled the ninety-six-year-old doctrine of Swift v. Tyson, and insisted that there was no such thing as a "federal general common law." Therefore, federal courts must apply the law of the state where the injury occurred. "This ruling," conclude Klebanow and Jonas, "fits in well with Brandeis's goals of strengthening the states and reversing the long-term trend toward centralization and bigness."

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