People in the United States are experiencing a level of political discontent unseen in decades. Partisans on the right have long fought against the inexorable growth of big government, just as those on the left have always railed against the growing power of big business. This year, the sides have begun to overlap in a way that confuses pundits used to the standard right-left split on these issues. But for an example of a man who resisted the growth of big government and big business alike, we need look no further than the late Supreme Court justice, Louis Brandeis.
In Louis D. Brandeis: American Prophet, Jeffrey Rosen dissects the legal and political philosophy of Justice Brandeis, a man who bent much of his thought on the "curse of bigness." Rosen, the president of the National Constitution Center and a contributing editor at Atlantic magazine (and one of my law school professors), presents the complicated picture of a progressive jurist who, unlike many of that persuasion, was an opponent of central planning.
Brandeis, both as a political thinker and a jurist, promoted a vision of government that was at once expansive, perfectionist, utopian, and traditional. He believed in the progressive idea that government should use its power to better the lives of the average citizen, whom he viewed as increasingly powerless against the growing might of big business. Even within the progressive movement, there was disagreement over the best way to achieve this goal.
Theodore Roosevelt saw the growth and consolidation of business as inevitable; his answer was to make government powerful enough to regulate it. Brandeis and Woodrow Wilson, in whose administration he served, instead wished to hold the line against consolidation: they wanted, as Rosen puts it "to keep business out of government and government out of business." In the context of 2016, TR would be for Dodd-Frank and the Consumer Financial Protection Bureau, Brandeis for Glass-Steagall and breaking up the banks. Both the CFPB and Glass-Steagall are beloved by different factions on the left, suggesting that the divide in progressivism in Brandeis's time remains unresolved today.
Brandeis carried his philosophy to the bench when Wilson appointed him to the Supreme Court in 1916, where he became the Court's first Jewish member. His decisions (and dissents) show why, as a defender of civil liberties, federalism, and limited government, the progressive Brandeis can also serve as a hero to modern conservative-libertarian thinkers. Rosen calls Brandeis "the Jewish Jefferson," and the comparison is nowhere more apt than in Brandeis's love of keeping political power at the most local level.
Brandeis demonstrated this when he joined a unanimous Court in striking down three programs from Franklin Roosevelt's First New Deal. Brandeis sympathized with Roosevelt's aims and had, in accordance with his theory of judicial restraint, voted to uphold some of the earlier programs. But the three decisions handed down that day held that the executive branch had taken too much power into its own hands without constitutional authority or even a clearly defined delegation by Congress. FDR believed that organizing and centralizing businesses' codes of conduct—the issue in the Schechter Poultry case—would eliminate the cutthroat competition that they blamed for business failures. Brandeis may not have disagreed, but he believed there were values the Constitution prized more highly than efficiency, including liberty, federalism, and the separation of powers.
Rosen pays special attention to Brandeis's majestic dissent in the landmark free speech case of Whitney v. California. Although the result of the case went against him, Brandeis's opinion would become the law of the land a generation later. Rosen quotes Justice Ruth Bader Ginsburg as saying that Brandeis "obviously would not have been a fan of Citizens United," but a look at Brandeis's stirring words in Whitney gives the reader reason to doubt:
"Those who won our independence … valued liberty as both an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth…."
Guessing how long-dead thinkers would assess our current problems often says more about our own opinions than theirs. But these are hardly the words of a man who would let an executive agency censor a film about a political candidate.
If Brandeis were alive today, he would likely be as invested in our current political and legal fights as we are, and his views might well have changed from those of his youth. Certainly, they did so in life, and among the strengths of Rosen's portrait of Brandeis is that he avoids the trap common to biographers of forcing an immutable worldview onto his subject and asking the reader to believe he never changed his mind. Brandeis did change, as all thinking people do when they encounter new facts and ideas. Rosen shows this and other facets of Brandeis's life with concision and eloquence. His efforts here should change modern thinkers' minds about Brandeis, as well.
Kyle Sammin is a lawyer and writer from Pennsylvania.