Justice Louis D. Brandeis

Justice Louis D. Brandeis, who had been a brilliant attorney, had no previous judicial experience before being named to the United States Supreme Court. Justice Brandeis is generally regarded as a great thinker and a judicial pioneer. He also was the first Jewish member of the United States Supreme Court.

Louis Brandeis, the son of Jewish parents, was born in Louisville, Kentucky in 13th November, 1856. He was educated in Louisville and Dresden in Germany before graduating from Harvard University in 1877. He worked as a lawyer in Boston where he illustrated a strong sympathy for the trade union movement and women's rights. This included him working without fees to fight for causes he believed in such as the minimum wage and anti-trust legislation.

Brandeis advised President Woodrow Wilson on policy and influenced his New Freedom economic doctrine. Brandies also published two important books during this period, Our Financial Oligarchy - Other people's money, and how the bankers use it (1914) and Business - A Profession (1914). A supporter of trade union rights, Brandeis argued in these two books that the retailer should make sure that "the goods which he sold were manufactured under conditions which were fair to the workers - fair as to wages, hours of work, and sanitary conditions." He went on to claim that if the business community considered moral issues when producing and selling goods then 'big business' will then mean "business big not in bulk or power but great in service and grand in manner. Big business will then mean professionalized business, as distinguished from the occupation of petty trafficking or more moneymaking."

In 1916 Brandeis was appointed to the Supreme Court and this decision was attacked by business interests and anti-Semites. One of the justices, James McReynolds, hostility towards Jews was so strong he always refused to sit next to Brandeis during meetings. Over the next few years Brandeis was a strong advocate of individual rights and freedom of speech. This included his opposition to the Espionage Act passed during the First World War.

Brandeis was often aligned with his friend, Oliver Wendell Holmes, in his decisions on the Supreme Court. Brandies favoured government intervention to control the economy and therefore defended most of the New Deal legislation that was introduced by Franklin D. Roosevelt during his period as president. However, Brandeis did argue that the National Recovery Administration (NRA) was unconstitutional. Louis Brandeis, who retired in February, 1939, died in Washington on 5th October, 1941.

(1) Louis Brandeis, Business - A Profession (1914)

The next generation must witness a continuing and every increasing contest between those who have and those who have not. The industrial world is in a state of ferment. The ferment is in the main peaceful, and, to a silent; but there is felt today very widely the inconsistency in this condition of political democracy and industrial absolutism. The people are beginning to doubt whether in the long run democracy and absolutism can coexist in the same community; beginning to doubt whether there is a justification for the great inequalities in the distribution of wealth, for the rapid creation of fortunes, more mysterious than the deeds of Aladdin's lamp. The people have begun; and they show evidences on all sides of a tendency to act.

Many workingmen, otherwise uneducated, talk about the relation of employer and employee far more intelligently than most of the best-educated men in the community. The labor question involves for them the whole of life; and they most, in the course of a comparatively short time, realize the power which lies in them. Often their leaders are men of signal ability, men who can hold their own in discussion or in action with the ablest and best-educated men in the community.

(2) Louis Brandeis wrote about a Boston company called Filnes in his book, Business - A Profession (1914)

The Filnes recognized that the function of retail distribution should be undertaken as a social service, equal in dignity and responsibility to the function of production; and that it should be studied with equal intensity in order that the service may be performed with high efficiency, with great economy, and with nothing more than a fair profit to the retailer. They recognized that to serve their own customers properly the relations of the retailer to the producer must be fairly and scientifically adjusted; and, among other things, that it was the concern of the retailers to know whether the goods which he sold were manufactured under conditions which were fair to the workers - fair as to wages, hours of work, and sanitary conditions.

The Filnes are of course exceptional men; but there are in America today many with like perception and like spirit. The paths broken by such pioneers will become the peopled highways. Their exceptional methods will become accepted methods. Then the term "big business" will lose its sinister meaning, and will take on a new significance. "Big business" will then mean business big not in bulk or power but great in service and grand in manner. "Big business" will then mean professionalized business, as distinguished from the occupation of petty trafficking or more moneymaking. And as the profession of business develops, the great industrial and social problems expressed in the present social unrest will one by one find solution.

(3) William Douglas, ruling against the United States Steel Corporation in 1948.

We have here the problem of bigness. Its lesson should by now have been burned into our memory by Brandeis. The Curse of Bigness shows how size can become a menace - both industrial and social. It can be an industrial menace because it creates gross inequalities against existing or putative competitors. It can be a social menace - because of its control of prices. Control of prices in the steel industry is powerful leverage on our economy. For the price of steel determines the price of hundreds of other articles. Our price level determines in large measure whether we have prosperity or depression - an economy of abundance or scarcity. Size in steel should therefore be jealously watched. In final analysis, size in steel is the measure of the power of a handful of men over our economy. That power can be utilized with lightning speed. It can be benign or it can be dangerous. The philosophy of the Sherman Act is that it should not exist. For all power tends to develop into a government in itself. Power that controls the economy should be in the hands of elected representatives of the people, not in the hands of an industrial oligarchy. Industrial power should be decentralized. It should be scattered into many hands so that the fortunes of the people will not be dependent on the whim or caprice, the political prejudices, the emotional stability of a few self-appointed men. The fact that they are not vicious men but respectable and social minded is irrelevant. That is the philosophy and the command of the Sherman Act. It is founded on a theory of hostility to the concentration in private hands of power so great that only a government of the people should have it.