"Justice Brandeis as Legal Seer"

Stephen Breyer
Associate Justice
Supreme Court of the United States

Brandeis Lecture
University of Louisville School of Law

Louisville, Kentucky
February 16, 2004

Mayor Brown, President Carlton, President-elect Archer, and my fellow adherents to the Rule of Law. Thank you for your gracious welcome and for your friendship.

I am pleased indeed to be here in Louisville. It is an honor to be asked to give this lecture, associated with Justice Louis Brandeis. To set the scene, let me remind you of several basic biographical facts of Brandeis's life.

Louis Brandeis was born here in Louisville in 1856. A few years earlier, his family had left Prague, fearing a conservative reaction to the failed democratic revolution there. The family prospered as merchants and was able to give Louis a good education - both here in Louisville and in Germany, where he attended high school. Although Louis's family was Jewish, they did not observe Jewish customs or religious practices. Louis maintained that secular life, although he felt the influence of his uncle, Lewis Dembitz, a practicing lawyer and orthodox Jew; indeed, he took Dembitz's last name as his middle name.

Brandeis was a brilliant law student, lawyer, and judge. I should like to read an excerpt (quoted by Tom McGraw) from a letter about him written by a fellow student at Harvard Law: Brandeis, it says,

graduated last year from Law School and is now taking a third year here-was the leader of his class and one of the most brilliant legal minds they have ever had here - and is but little over twenty-one withal. Hails from Louisville - is not a college graduate, but has spent many years in Europe, . . . Tall, well-made, dark, beardless, and with the brightest eyes I ever saw. Is supposed to know everything and to have it always in mind. The Profs. listen to his opinions with the greatest deference, and it is generally correct. There are traditions of his omniscience floating through the school. One I heard yesterday - A man last year lost his notebook of Agency lectures. He hunted long and found nothing. His friends said - Go and ask Brandeis - he knows everything - perhaps he will know where your book is - He went and asked. Said Brandeis - "Yes - go into the Auditor's room, and look on the west side of the room, and on the sill of the second window, and you will find your book" - And it was so.

This letter suggests that Brandeis was omniscient, indeed, a seer, a matter to which I shall return.

Brandeis's professional accomplishments lived up to his Law School reputation. For thirty years, with his partner Samuel Warren, he practiced law in Boston, where he turned his raw intelligence, powerful legal imagination, unusual capacity for hard work, and love of advocacy into a highly successful career. That is to say, Brandeis did well financially, but he did not ignore the "public interest" dimension of the profession. Indeed, he argued many of his cases without charge, winning most of them, and earning in the process a reputation as "the people's lawyer."

Brandeis became particularly interested in government regulation, which he saw as a weapon to help the ordinary citizen, worker, or consumer. Let me give you some examples of his work on regulation: Marshalling facts, including the "fact" that the railroads were operating inefficiently, he convinced the Interstate Commerce Commission that it should deny significant increases in railroad rates. Filling his famous "Brandeis brief" with "facts" about the effects of working long hours on women's health, he convinced the Supreme Court to uphold as constitutional an Oregon law limiting the number of hours that women could work. (And that was not an easy legal task three years after the Supreme Court had struck down a similar law limiting bakers' hours in Lochner v. New York.) Brandeis worked for stronger antitrust laws, for more extensive regulation of big business, and, in particular for a new regulatory agency, the Federal Trade Commission, which, after Woodrow Wilson's election, he helped to establish.

In 1916 President Wilson appointed Brandeis, then 60, to the United States Supreme Court. After contentious hearings, the Senate confirmed Brandeis. He served on the Court for 23 years. His work has had an impact that has lasted for generations.

The question I want to discuss this evening is: Why? Why has Brandeis's reputation as a great lawyer and judge endured for all these years? Is it because, as his classmate's letter suggests, he was a seer, someone who knew everything? Is it because, as Louis Jaffe once told me, he was the greatest liberal of his day? Is it because of his unflagging support for average working people? Court historian Maeva Marcus writes that Brandeis's opinions reflected his experiences with the problems of industrial democracy, including mediating a garment workers' strike. Another scholar, Tom McGraw, argues that the

central themes of his [C]ourt career accorded well with the chief interests of his earlier life: a preoccupation with actual social conditions, an insistence on individual rights and autonomy, and . . . a powerful commitment to judicial restraint.

He adds that Brandeis's opinions, embodying these themes, made him "an American hero, . . . a properly revered symbol of individualism, integrity, self-reliance, and willingness to fight hard for cherished values."

I do not quarrel with these assessments, but, in my view, they do not fully explain the lasting impact of Brandeis's work. Brandeis, after all, could not foretell the future; his law school classmates' belief to the contrary notwithstanding. He was a man of his time. And his opinions reflect the social and economic problems of those times. Why, then, does his work still resonate in a world that faces different economic and social problems? Why do we continue to find accurate Tom McGraw's description of Brandeis as embodying "impartiality, wisdom, and judicial depth?"

With this question in mind, I recently re-read one of Brandeis's most famous opinions, his dissent in the New State Ice case. Those reactions may be of interest to you because they come from a judge who very much admires the opinion, yet who has lived nearly a century later than Brandeis in a world with different economic and social problems. Given the differences in perspective, perhaps they will help us locate where in the opinion its enduring value lies.

The Supreme Court decided New State Ice Co. v. Liebmann in 1932. Oklahoma had enacted a statute regulating firms that sold ice in the State. Any such firm was required to obtain the State's permission to enter the business, pay a licensing fee, charge regulated rates, and follow Commission-set accounting procedures. The Liebmanns, who wanted to enter the ice business, challenged the statute's constitutionality. They pointed to Supreme Court precedent holding that a State could regulate an industry only if that industry was "impressed with a public interest," a matter determined by history or by a special public need for the industry's goods or services. The Liebmanns argued that providing ice was no longer a special "public interest" industry. They argued that providing ice did not differ significantly from providing meat, vegetables, or other ordinary commodities; that new, electric refrigeration permitted ice to be made by almost anyone; and that State regulation primarily served to shield existing ice providers from competition by new entrants. Ultimately a majority of the Court agreed. The Court found that "the practical tendency" of the law was to "shut out new enterprises, and thus create and foster monopoly in the hands of existing establishments, against, rather than in aid of, the interest of the consuming public." The Court struck the statute down as unconstitutional.

Brandeis disagreed with the majority. His 31-page dissenting opinion contains 57 footnotes, almost every one of which is crammed full of facts. I cannot reproduce the opinion here. But I can give you the flavor of it. Brandeis quotes from Lord Hale's Treatise on the Ports of the Sea, from the Ice and Refrigeration Blue Book for 1927, from the magazine Refrigerating World, and from an old Supreme Court opinion that describes the regulation of chimney sweepers. His text and footnotes explain the nature of public utility regulation. They demonstrate that ice manufacturing had become an important industry by the early 1930's (52,202,160 tons were produced in 1927) with widespread industrial, agricultural, and domestic uses. They make clear that, without ice, perishable commodities, such as food, could not be sold at great distances, particularly in states with warm summers such as Oklahoma (where, according to Brandeis, the average "mean normal temperature" from "May to September is 76.4 degrees.").

The text and footnotes show that electric refrigerators, while part of a growing market, had not yet achieved dominance and many families could not afford them. They discuss plant-based economies of scale, using cost figures to suggest that many localities could only support one plant of efficient size. They describe consumer complaints about poor service, and how the state commission sought to provide better service and lower prices. They refer to economists who argued that the economic problem in the 1930's was not high prices, but so-called "destructive competition," and others who believed "that one of the major contributing causes" of the current depression "has been unbridled competition."

One must ask, however, what conclusion the reader is meant to draw from the display of facts and technical arguments. And here we may find differences in the reactions of Brandeis's contemporary readers and those of today. Did Brandeis intend to show that regulation, by restricting competition, would help rescue America from the Depression? A later report from Paul Freund, Justice Brandeis's law clerk, that Brandeis kept a file labeled "Depression Cures," offers some support for this view. That possibility was not considered peculiar at the time; in fact, it found expression in President Roosevelt's effort to enact the National Industrial Recovery Act, a law that would have created industry cartels, where industry leaders, worker representatives, and government members together would have determined prices, product supply, and working conditions in many major industries.

But if the desirability of some such system is what Brandeis sought to prove in his dissent, he failed in the long term. Few industrial economists today believe that competition-restricting devices could have overcome the Depression. Brandeis himself expressed doubts about New Deal measures like the National Industrial Recovery Act, writing to his daughter in 1934 that such cures "seem[ed] to be going from bad to worse." And Brandeis ultimately joined a unanimous Court that struck down the NIRA as a form of "delegation run riot."

Then, was Brandeis trying to show that "destructive competition" was a serious problem demanding a legislative solution? If so, his view no longer reflects the consensus of modern regulatory economists, who think that "destructive competition" was generally an empty pejorative phrase used by established firms in regulated industries like trucking, maritime shipping, or airlines, to stop the competition that new entrants might provide. That is just what the New State Ice majority said, namely that the Oklahoma statute would hurt, not help, consumers, by restricting competition.

Was Brandeis trying to show that the ice business was a natural monopoly that the State must regulate to protect the public? If so, economists today might find his reasoning inadequate. The facts that he relied upon - that only one firm supplied ice in most localities, that prices were uniform, that the value of ice was low compared to shipping costs - might or might not show a natural monopoly depending upon the ability of new competitors to enter a market should that single firm seek to raise its prices.

Was Brandeis trying to help small business? It seems not: the Liebmanns' ice company would have been the very kind of small business, seeking to enter an industry dominated by existing firms, that Brandeis would ordinarily have supported, given his opposition to big business and trusts.

Was Brandeis trying to prove that regulation of industry was itself a good idea, helping to protect the public from the harms that "big business" might cause? If so, he has not entirely succeeded over time. The terms of the economic debate have shifted as the American public has become less sanguine about the ability of government regulation to solve our major economic problems. We have seen regulatory agencies "captured" by those whom they are supposed to regulate. We have found instances where government regulation has proved counter-productive. As a consequence, we no longer argue among ourselves in absolute terms - i.e., no regulation or full-blown "command and control" regulation. Rather, we debate more nuanced questions of where, when, and what kind of regulation is appropriate. Brandeis may have seen regulation as an answer; today we see it as a source of questions.

Was Brandeis trying to show that States must have greater regulatory powers in order to help small business, workers, and consumers? If so, the facts of New State Ice offer only a modicum of support for that proposition. And the need to augment State powers for that purpose proved less important with the advent of the New Deal. Under Roosevelt, the federal government, not the States, proved the instrument of policy change. The federal government's regulatory powers continued to expand for decades, as late as the 1970's and under Republican as well as Democratic Presidents. Where Brandeis envisioned the States as saving the day, it ended up being Congress that enacted far-reaching regulatory statutes and then established federal agencies to administer them.

If history fails to validate at least some of Brandeis's economic views, however, that fact does not diminish the life and force that his dissenting opinion retains to this day. According to Westlaw, the New State Ice decision has been cited 1,679 times, in recent Supreme Court opinions, in untold numbers of law review articles, and elsewhere. Why? I suspect it is because his fact-based discussion helps to support two important general statements, and it embodies an important constitutional attitude.

The first statement concerns the relation of the Supreme Court and the States. Brandeis's opinion says that

"[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."

The second statement concerns the relation of the Supreme Court and legislatures. Brandeis, while acknowledging that the Constitution required the Court to strike down arbitrary legislation, added these words:

"But, in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold."

These two statements do not favor or disfavor any particular set of economic or social beliefs. Rather, they describe a structural relationship, a proper structural relationship, between the courts and the Constitution. This relationship means that legislatures, both federal and state, must have broad power to determine the legal relationships among labor, management, capital, and consumers. And courts, when they review legislative decisions about economic and social matters (where basic individual liberties are not threatened) must respect a legislature's judgments.

Seen as an effort to demonstrate the validity of these propositions, Brandeis's lengthy factual descriptions and technical arguments suddenly spring to life. We see them, not as dated claims from the 1930's about what is the case, but as hypothetical claims about what then plausibly might be so - just as Brandeis said they were. (It might be true, for example, that freight costs were so high that local ice plants were immune from competition - even if we cannot be certain.) The change, from the actual to the possible, makes a difference. The opinion's detailed discussion of ice manufacturing, temperature changes, destructive competition, and classic public utility regulation then serve to demonstrate the following lasting truths:

By using facts to show what plausibly might be so, Brandeis demonstrated the truth of these propositions. This, in my view, is the key to the opinion's greatness and enduring constitutional value.

To repeat what I see as the connection that the New State Ice dissent finds between ice-making machinery and human liberty: I see that connection as embodying what Judge Learned Hand described as the "spirit of liberty," that "spirit that is not too sure of itself." That is a message that, I believe, Brandeis thought courts, like other institutions in a democracy, might take into account.

Indeed, Brandeis understood the Constitution's basic objective as the creation of a certain kind of democratic system of government - a system that protects fundamental human liberty while assuring each citizen the right to participate in well-functioning democratic decision-making institutions. That system foresees, and depends upon, citizens deciding for themselves how to live together in their communities. The job of the Court is to keep legislatures on the constitutional rails, deferring to legislators' judgments whenever fundamental individual liberties are not seriously threatened.

This view of the Constitution has been at issue in recent cases in our Court. In United States v. Lopez, decided in 1995, the Court struck down a federal statute called the Gun-Free School Zones Act, which made it a federal crime for anyone knowingly to possess a firearm near a school. The majority found that the statute exceeded Congress' authority to legislate under its Commerce Clause power, because possessing a gun in a local school zone was not economic activity that substantially affected interstate commerce. In the view of the minority, the Constitution required us to judge the matter not directly, but at one remove. "Courts," we said, "must give Congress a degree of leeway in determining the existence of a significant factual connection between the regulated activity and interstate commerce - both because the Constitution delegates the commerce power directly to Congress and because the determination requires an empirical judgment of a kind that a legislature is more likely than a court to make with accuracy." The question was not whether there actually was a substantial connection between gun-related school violence and interstate commerce, but whether Congress could rationally have found such a connection. An Appendix, full of reports and studies, tried to show that Congress could have found that gun-related violence near schools is a commercial, not just a human, problem.

More recently, the Court found that Congress had exceeded its enforcement power under the Fourteenth Amendment to enact Title I of the Americans with Disabilities Act. Title I prohibited States from discriminating against the disabled in employment, and it required States to make some accommodations for disabled employees. The Court held that the legislative record was inadequate, because it did not show that Congress had identified a pattern of irrational state discrimination in employment against the disabled or designed an appropriate way to enforce an anti-discrimination requirement. Again, the dissent, citing the mass of facts that Congress had assembled with the help of a special task force on the need for remedial legislation, argued that Congress might reasonably have found a need for its legislation, and that strict judicial review of the "evidence" before Congress was not appropriate. In both cases, the underlying issue concerned the basic Brandeis question - the structural question of the proper relation between the Court and Congress. I cannot prove that Brandeis was right; nor can I even prove that he would have found himself in dissent. But I can say that his view of the proper Constitutional relation has influenced my own views, three-quarters of a century later.

My reading of the New State Ice dissent suggests that Brandeis, perhaps, was not seer in respect to details. Whether Brandeis was right or wrong about ice-making and natural monopoly is a contingent matter, not determined by our Constitution. But whether Brandeis was right about political democracy is a non-contingent matter, permanently inscribed in our Constitution. And here New State Ice suggests that Brandeis was a seer. He was right in urging deference to legislative judgments, when economic regulation and ordinary social legislation is at issue. And he was right that we must continue to use facts and consequences to distinguish permissible, or better, from impermissible or worse, interpretations of the Constitution and of law.

Brandeis's dissent shows the need for, and provides, a standard that permits courts to separate the contingent from the permanent. Brandeis remains a seer, not because he could find a lost book in class nor because of his use of factual detail, but because of his prescient sense of the role of judges interpreting a Constitution that, while protecting human liberty, even more importantly, creates a democracy.