Louis D. Brandeis: Advocate Before and On the Bench MELVIN I. UROFSKY On January 3,1916, members ofthe Chicago Bar Association listened attentively as one of the country’s best-known attorneys and reformers rose to speak to them. No one in the audience, not even their guest of honor, knew that within a few days the President of the United States would nominate him to become a member of the United States Supreme Court. In his speech that day, Louis Dembitz Brandeis spelled out his views on the problems confronting law in a rapidly changing society, and placed much ofthe blame for social unrest and popular disrespect for the law on judges who refused to recognize place all around them: Political as well as economic and social science noted these revolu tionary changes. But legal science— the unwritten or judge-made laws as distinguished from legislation—was largely deafand blind to them. Courts continued to ignore newly arisen social needs. They applied com placently eighteenth-century concep tions of the liberty of the individ ual and of the sacredness of private property.... Where statutes giving expression to the new social spirit were clearly constitutional, judges, imbued with the relentless spirit of individualism, often construed them away. Where any doubt as to the conthe economic and social developments taking stitutionality of such statutes could find lodgment, courts all too fre quently declared the acts void.... The law has everywhere a tendency to lag behind the facts of life.1 In the two decades before he gave this talk, and for the nearly quarter-century that he sat as an Associate Justice of the Supreme Court, Louis Brandeis tried to convincejudges that the law they interpreted had to be viewed in the light of modern conditions, and that in their opinions they had to take into account the social and economic facts of modern life. He did this both as an advocate before the bar and as a member of the nation’s highest tribunal. 32 JOURNAL OF SUPREME COURT HISTORY * * * Act One: The Lawyer as Advocate From his youth, Louis Brandeis loved the law. Inspired by his uncle, Lewis Naphtali Dembitz, a practicing attorney as well as a brilliant legal scholar, from the time Brandeis entered Harvard Law School on September 27, 1875 until he retired from the Supreme Court on February 13, 1939, he never regretted this choice, and he gloried in the challenges and opportunities of the law. He entered Harvard during one of its most exciting times—that of the Langdellian reforms—and his instant infatuation with the law shone clearly in his letters home. “You have undoubtedly heard,” he wrote to his brother-inlaw Otto Wehle, “how well I am pleased with everything that pertains to the law.”2 To his sister he declared “Law seems so interesting to me in all its aspects; it is difficult for me understand that any ofthe initiated should not burn with enthusiasm.”3 After compiling a near-perfect record at the law school, Brandeis practiced briefly in St. Louis before returning to Boston to form a successful partnership with his law school classmate, Samuel D. Warren, the scion of a prosperous paper-manufacturing family. To help meet their expenses, the two took over the editorship of a legal periodical, but Brandeis made clear that above all he wanted to prac tice law. “Although I am very desirous of de voting some of my time to the literary part of the law, I wish to become known as a prac ticing lawyer.”4 Success would not dampen this enthusiasm. Well after his abilities had been recognized by all, he would write to his brother Alfred about his impatience during a quiet spell. “I really long for the excitement of the contest—that is a good prolonged one covering days or weeks. There is a certain joy in the draining exhaustion and backache of a long trial, which shorter skirmishes cannot afford.”5 Brandeis’s success as a lawyer rested on several grounds. First, one has to note his sheer At an early age, Louis Dembitz Brandeis was inspired to enter the legal profession by his uncle, Lewis N. Dembitz (pictured...