Justice Brandeis

The New York Times has published two reviews of Mel Urofsky’s new biography of Louis Brandeis.  I haven’t seen the book yet, but Mel had sent me the page proofs of several chapters earlier this year, and they were great.

Whiles the parts of the book I read struck me as admiring but with appropriate cautionary notes, Brandeis hagiography otherwise appears alive and well.  In his review of the book,  Alan Dershowitz writes that “the First Amendment’s right of free expression, the Fourth Amendment’s right to privacy and the due process clause’s focus on personal liberty (rather than property) all owe their current vitality to the creative genius of Justice Brandeis.”

With some reservations (Brandeis’s view of the First Amendment was much more utilitarian, in the sense of supporting free speech because he thought it would lead to further Progressive reform, than modern, more libertarian-oriented doctrine), I’ll concede the First Amendment point.

But Brandeis was no great hero of the Fourth Amendment. Brandeis, of course, authored a famous dissent in the 5-4 decision in Olmstead v.  United States,  holding that the fourth amendment prohibits warrantless wiretapping.  But Brandeis was not a consistent advocate of a broad Fourth Amendment.  For example, in Carroll v. United States, 267 U.S. 132 (1925), the Supreme Court upheld a warrantless search of a car on suspicion of transporting alcohol.  The majority, including Justice Brandeis, concluded that automobiles are distinct from private dwellings for Fourth Amendment purposes.  Justice McReynolds, joined by Justice Sutherland, dissented.  More generally, the most consistent advocates of Fourth Amendment protections against the excesses of Prohibition enforcement came from several of the “conservative” Justices, especially Justice Pierce Butler, with Brandeis consistently voting in favor of the government.

When the liberal Warren Court chose to strictly enforce the Fourth Amendment, it naturally looked to helpful precedents, and also naturally sought to cite a “Progressive” forebear, and not one of the discredited “conservative” “Four Horsemen.”  And therefore Olmstead became a canonical Fourth Amendment case.

With regard to the due process clause and personal liberty,  Brandeis had little to do with the application of the due process clause to non-economic rights.  The pioneer in this regard was Justice James McReynolds, who wrote the Court’s seminal opinions in Meyer v. Nebraska, Pierce v. Society of Sisters, and Farrington v. Tokushige.  Brandeis joined all of these opinions, but he also made it clear in private conversations with Justice Felix Frankfurter that he supported limiting the Due Process Clause to procedural matters, or even repealing it entirely.  If the Court was going to insist on applying the clause to substantive matters, however, Brandeis thought that educational freedom and other personal liberties should be given as much weight as economic concerns.

In short, it’s hard to see how Brandeis gets credit for “the due process clause’s focus on personal liberty,” except, again, that his presence in the majority in these cases allowed the Warren Court to rely on them, rather than ignore or dismiss them as products of the reactionary liberty of contract era.

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